State v. Russum
| Decision Date | 10 October 1944 |
| Docket Number | 6713 |
| Citation | 152 P.2d 88,107 Utah 94 |
| Court | Utah Supreme Court |
| Parties | STATE v. RUSSUM |
Appeal from District Court, Third District, Salt Lake County; Bryan P. Leverich, Judge.
Lee Russum was convicted of burglary in the second degree, and he appeals.
Reversed with instructions.
Judgment reversed.
E LeRoy Shields, of Salt Lake City, for appeallant.
Grover A. Giles, Atty. Gen., and Arthur E. Nielsen, Deputy Atty Gen., for respondent.
Lee Russum was charged by information with the crime of burglary in the second degree and with being an habitual criminal. He was convicted by a jury of burglary in the second degree and sentenced to the state penitentiary. He appeals.
Appellant cites as error the court's refusal to quash the information on the ground that more than one offense is charged therein and there is no statutory authority permitting the joinder of the crimes of burglary in the second degree and that of being an habitual criminal. The court did not err in refusing to quash the information on that ground. To be charged with being an habitual criminal is not to be charged with a crime. Being an habitual criminal is a status and subjects such person to a greater penalty than would otherwise be imposed for the crime with which he is charged. As stated in 25 Am. Jur. page 260, Sec. 1:
That being an habitual criminal is a status is suggested by this court in Thompson v. Harris, Warden, 106 Utah 32, 144 P.2d 761. See also State v. Zywicki, 175 Minn. 508, 221 N.W. 900; State ex rel. Edelstein v. Huneke, 138 Wash. 493, 244 P. 721. It follows that including the charge of being an habitual criminal in an information charging a crime is not error, provided the requisite facts are set out in the information which charges one with being an habitual criminal. In the instant case appellant contends this was not done and he cites as error the court's refusal to strike from the information the charge of being an habitual criminal. 103-1-18, U. C. A. 1943, defines an habitual criminal as:
"Whoever has been previously twice convicted of crime, sentenced and committed to prison, in this or any other state, or once in this and once at least in another state, for terms of not less than three years each, shall, upon conviction of a felony committed in this state, * * * be deemed to be an habitual criminal, and shall be punished by imprisonment in the state prison for not less than fifteen years; * * *."
In State v. Walsh, 106 Utah 22, 144 P.2d 757, this court construed this section to mean that the previous convictions must have carried a minimum penalty of not less than three years and that any sentence carrying a minimum penalty of less than three years did not come within the provisions of this statute. The information charged appellant with having been previously twice convicted of felonies for one of which he was sentenced to a term of not less than two years in a state prison. Under the ruling of State v. Walsh, supra, it is clear that the information was insufficient to charge appellant with being an habitual criminal and that the court erred in refusing to strike that portion of the complaint which purported to charge him with being an habitual criminal.
Appellant further assigns as error the admission in evidence of prior convictions and the court's instructions in relation thereto.
After the state had introduced in evidence, over appellant's objections, records of his prior convictions, he took the stand and testified in his own behalf and on cross-examination admitted details of the offenses for which he had been previously convicted. The jury, however, did not find that he was an habitual criminal, but...
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State v. Kooyman
...9. The effect of this erroneously admitted evidence on Kooyman's decision to testify is not clear from the record. Cf. State v. Russum, 107 Utah 94, 152 P.2d 88, 90 (1944) (holding that the defendant's right to a fair trial was prejudiced by the trial court's erroneous admission of evidence......
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State v. Zeimer
...the expense of a second jury and a second trial. CALLISTER, J., concurs in the dissenting opinion of HENRIOD, J. * State v. Russum, 107 Utah 94, 152 P.2d 88; State v. Stewart, 110 Utah 203, 171 P.2d 383.1 See 76-1-19, U.C.A.1953.2 State v. Russum, 107 Utah 94, 152 P.2d 88.3 Rex v. Hunter, 1......
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State v. Wood, 8020
...an habitual criminal is a status, and to be charged with being an habitual criminal is not to be charged with a crime. State v. Russum, 107 Utah 94, 152 P.2d 88; State v. Stewart, 110 Utah 203, 171 P.2d 383. It follows that including the charge of being an habitual criminal in an informatio......
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Zeimer v. Turner
...concur. 1 103-1-18, U.C.A.1943.2 76-1-18, U.C.A.1953.3 76-53-19, U.C.A.1953.4 State v. Walsh, 106 Utah 22, 144 P.2d 757; State v. Russum, 107 Utah 94, 152 P.2d 88; State v. Hanni, 108 Utah 49, 156 P.2d 404.5 State v. Wood, 2 Utah 2d 34, 268 P.2d 998.6 24 B C.J.S. Criminal Law Sec. 1958.7 11......