State v. Riley

Decision Date10 June 1920
Citation110 A. 550,94 Conn. 698
CourtConnecticut Supreme Court
PartiesSTATE v. RILEY.

Appeal from Superior Court, New Haven County; Donald T. Warner Judge.

George Riley, alias John McCarthy, etc., was convicted of theft from the person, and he appeals. No error.

Information of the state's attorney for New Haven county against the defendant for theft from the person, and further alleging that the accused twice before had been convicted, sentenced and imprisoned in a state prison; brought to the criminal superior court for New Haven county and tried to the jury and found guilty as charged. Sentence imposed by the court under the provisions of the Indeterminate Sentence Act (Gen St. 1918, § 6660) for not less than 5 years nor more than 30 years in the state prison.

This action is upon the information of the state's attorney for New Haven county charging the defendant, under a number of aliases, with theft from the person of certain money of the value of $16. The charge of the crime of theft from the person was, in the information, followed by a statement in the form prescribed by the statute of three instances, in which the defendant, prior to the institution of the present action, had been convicted, sentenced, and imprisoned in the state prison of the state of New York. The defendant filed a motion to quash the information so far as it related to former conviction for the reason that:

(1) There is no such offense as a second offense or a third offense per se provided for by statute in this state.

(2) Because he could only be arraigned and tried for a specific offense that is defined by statute or law.

(3) Because the only offense for which he could properly be tried was the charge of theft from the person.

(4) Because the charge of theft from the person does not include in its elements prior convictions, and to include them would be prejudicial to the interests of the defendant.

(5) Because the information containing the statements as to prior convictions would enable the state to offer evidence irrelevant to the crime of theft alleged to have been committed in this state.

The motion to quash was denied.

The defendant thereupon demurred to the information because:

(1) It in effect charges him with being a third offender when in fact and by law there is no such crime defined by or existing under the laws of the state of Connecticut.

(2) The charge of being a third offender is recognized as being a distinctive offense and includes in its elements the facts of former convictions; but the statute under which the person prosecuted is brought fails to establish or define a new crime, but instead thereof it expressly provides a larger penalty for a conviction for an offense forbidden by the laws of this state in cases where such conviction is a third one as to the accused.

(3) The said statute is unconstitutional and void because in terms it seeks to impose a penalty on an accused without a conviction by the jury as to his guilt on the charge upon which the increased penalty attaches and thereby deprives him of due process of law.

This demurrer was overruled. The accused pleaded not guilty, and the jury returned a verdict of " guilty as charged."

The defendant then moved in arrest of judgment because he had been found guilty on an information purporting to charge him with an offense which does not exist in law in Connecticut, to wit, the crime of a third offense. The defendant also filed a motion to set aside the verdict as contrary to the law and the evidence. Both of these motions were denied. The court thereupon sentenced the defendant to the state prison for not less than 5 years nor more than 30 years. From this judgment the defendant appealed, alleging errors in the denial of the motion to quash, in overruling the demurrer to the information, in admitting exemplified copies of the records of prior convictions, in admitting in evidence the testimony of identifying witnesses, and in denying the motion in arrest and the motion to set aside the verdict.

Kenneth Wynne, of New Haven, for appellant.

Arnon A. Alling, State's Atty., and Walter M. Pickett, Asst. State's Atty., both of New Haven, for the State.

GAGER J.

The question raised upon this appeal is not based upon the constitutionality of the act or acts under which the defendant was sentenced, nor upon any claim that an habitual offender's law is not a proper exercise of legislative powers. As stated by defendant's counsel in his brief, " This case hinges on what our law says." And the claim, as appears from the demurrer and the motion to quash, is in effect that the defendant was tried and found guilty of a third offense, while the defendant says that there is no statute which provides for such an offense as a second offense or a third offense; that the offense for which he could be arraigned and tried was upon an information of theft from the person and nothing else. The remaining statements of the appeal all turn upon the correctness of the claim as to whether, under our statutes as they stand, the trial and sentence of the accused as appears from the record was authorized.

The sole claim made by the defendant is that under our statutes it was improper to try the accused upon the information containing allegations of three prior convictions and imprisonments in the state prison, or penitentiary, because our statutes are defective in not clearly stating and describing the crime as third offense. It may be admitted that our statutes do not create a technical distinct offense known as third offense as a distinctive crime complete in itself and no such offense is in terms charged in the information. What the statutes do contemplate and provide for is that in case of one or two prior convictions the penalty for the new offense on which the defendant is tried and convicted may be made severer than when there is no such prior conviction. The use of the term " second offense" or " third offense" is an untechnical statement of what the statute does describe as an offense committed after one or more prior offenses, and not as a different offense. Hence in State v. Ryan, 68 Conn. 517, 37 A. 378, Justice Torrance, referring to the liquor statute, used the language:

" The offense attempted to be charged is what is known as a second offense."

In the present case the defendant was in usual form charged with theft from the person under section 6254. The information then alleged three former convictions in the manner provided in section 6617. These former convictions in the present case were all obtained in other jurisdictions. They are no part of the crime charged against the defendant as committed in this jurisdiction, but are necessary to enable the court to apply the indeterminate sentence statute (section 6660), which, after providing for a maximum and minimum for state prison sentence other than for life and as connected with a capital offense, goes on as follows:

" Provided, when any person so sentenced shall have twice before been convicted, sentenced and imprisoned in a state prison or penitentiary, the court shall sentence said person to a maximum of thirty years."

The Indeterminate Sentence Act creates no new crime. It does however, recognize and provide for different degrees of criminality with reference to the same criminal offense, and by force of the statute takes into account, as a proper element to be considered in determining the penalty, but not as to the commission of the crime or what the crime is, the fact of having twice before been convicted. It is a legislative adoption of the same method that is necessarily followed by a court in determining, within the limits prescribed by the statute, the maximum and minimum terms of imprisonment, or in appropriate cases in determining whether or not the person convicted shall be admitted to probation. The facts which may influence the court in either of these particulars are not necessarily or ordinarily any part of the crime which has been charged. They are collateral matters, and, whatever the measure of punishment adopted as a result of these collateral facts, the offense as a criminal offense remains unchanged. The distinction under the indeterminate sentence statute between a case where one has twice before been convicted and the ordinary case is that, where the maximum and minimum terms in the ordinary case are determined by the sound discretion of the court, on such...

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