State v. Owens

Decision Date01 December 1953
Parties, 48 Del. 230 STATE v. OWENS (two cases).
CourtDelaware Superior Court

Edmund N. Carpenter, II, Dep. Atty. Gen., for the State.

Brereton Sturtevant, Wilmington, for defendant.

LAYTON, Judge.

A statute of this nature is valid provided only that it is made applicable to a fourth offense committed subsequent to its passage. Gryger v. Burke, Warden, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; Wilson v. U. S., 9 Cir., 205 F.2d 567; Cases v. U. S., 1 Cir., 131 F.2d 916.

But the application of a statute increasing the punishment for a crime, after the commission of that crime, is ex post facto and, thus, unconstitutional by virtue of Article I, Section 10 of the Federal Constitution. 1 Lindsey v. State of Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182; U. S. v. Platt, D.C.Tex., 31 F.Supp. 788, 792; People v. D' A Philippo, 220 Cal. 620, 32 P.2d 962; State v. Dreaux, 205 La. 387, 17 So.2d 559.

While it necessarily follows that the State's motion must be dismissed, I think it appropriate to comment very briefly upon the proper procedure for bringing on these matters hereafter for sentence under the Act in question. As I read the Act, it is the State's duty to bring on for sentence as an habitual criminal every defendant found guilty of the commission of a fourth felony. It has been suggested that the proper procedure should be by way of indictment--that is to say, an indictment for such felony which would contain sufficient additional allegations (including defendant's conviction of three former felonies) to charge him as an habitual criminal. Concededly, this practice is pursued in some states but an examination of a number of their statutes reveals that this procedure is required by the very terms of the Statute. Moreover, such a practice would always be the subject of criticism from both the defendant and the prosecution, the former complaining that it is prejudicial to his case for the jury to have before it the record of his three prior convictions for felony, and the latter that it will render it much more difficult to obtain a conviction when the jury knows, as they, or some of them, inevitably will, that their action in convicting the defendant might be tantmount to jailing him for life.

Upon reflection, it occurs to me that an acceptable procedure, and one which would satisfy the demands of due process of law, would consist of something less formal than an indictment...

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3 cases
  • Oney v. State
    • United States
    • United States State Supreme Court of Delaware
    • May 6, 1982
    ...of the Code, the statute appears as 11 Del.C. § 3911, whereas originally it was cited as 11 Del.C. § 109. See, State v. Owens, Del.Super., 101 A.2d 319 (1953) first construing the statute and referring to it as 11 Del.C. § 109. The Code Revisors also deleted the word "hereby" from the origi......
  • McDuell v. State
    • United States
    • United States State Supreme Court of Delaware
    • June 8, 1967
    ...that to treat him as a second offender would violate his constitutional guaranties against Ex post facto laws, citing State v. Owens, 9 Terry 230, 101 A.2d 319 (1953) and State v. Fowler, Del.Super., 194 A.2d 558 (1963). The position is untenable. A law is not objectionable as Ex post facto......
  • Gibbs v. State
    • United States
    • United States State Supreme Court of Delaware
    • March 9, 1965
    ...as appears here. The origination and evolution of the procedure, used to implement our Habitual Criminal Act, appear in State v. Owens, 9 Terry 230, 101 A.2d 319 (1953) and in 11 Del.C. § 3912. It appears that § 3912 was enacted as the result of the Owens case in which the court noted the l......

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