State v. Samuel M. Stern.

• Decision Date: 10 April 1941
• Docket Number: 32,703.
• Citation: 297 N.W. 321,210 Minn. 107
• Parties: State v. Samuel M. Stern.
• Court: Minnesota Supreme Court

297 N.W. 321

210 Minn. 107

State v. Samuel M. Stern.

No. 32,703.

Supreme Court of Minnesota

April 10, 1941

Defendant appealed from a conviction in the district court for Ramsey county, under the habitual criminal act, Kenneth G. Brill Judge, of the crime of performing an illegal operation. Affirmed.

McMeekin & Quinn, for appellant.

J. A A. Burnquist, Attorney General, M. Tedd Evans, Assistant Attorney General, James F. Lynch, County Attorney, and William F. Desmond, Assistant County Attorney, for the State.

The opinion of the court was delivered by: Loring

-- basis for double sentence under habitual criminal act.

Where defendant was convicted in California of the crime of embezzlement and after having served his sentence was pardoned by the governor of that state "in order to restore his citizenship," and subsequently, in Minnesota, he was convicted of the crime of performing an illegal operation, held that the prior pardon was no bar to the imposition of a double sentence under 2 Mason Minn. St 1927, § 9931 (habitual criminal act).

LORING JUSTICE.

This case comes here upon an appeal from a conviction under the habitual criminal act, 2 Mason Minn. St. 1927, § 9931, the defendant having been convicted of the crime of performing an illegal operation. An information was lodged against him of a prior conviction in the state of California for the embezzlement of an automobile. Subsequent to his conviction in that state and after the term of his sentence there imposed had been completed, he was pardoned by the governor of that state "in order to restore his citizenship."

The sole question presented by this appeal is whether the prior conviction in California may be used against the defendant as a basis for double sentence under the habitual criminal act notwithstanding the pardon. Generally speaking, there is a diversity of authority upon the question, the courts of Virginia, Ohio, Oklahoma, Louisiana, and Texas taking the view that the pardon blots out guilt and wipes out the offense, which is then regarded as never having been committed; whereas New York, Kentucky, and Washington besides California, are of the opinion that the pardon has no such effect and that the defendant may be adjudged a prior offender and given the increased punishment as such.

We think that on the narrow question here before us the supreme court of California has answered it by holding that a pardon in that state does not effect the blotting out of the offense but is immaterial and no bar to a conviction under the habitual criminal act. It is true that in the cases from that state which have been called to our attention the pardons were by governors of other states than California; but from the language used in People v. Biggs, 9 Cal. (2d) 508, 71 P.2d 214, 116 A.L.R. 205, and People v. Dutton, 9 Cal. (2d) 505, 71 P.2d 218, it is quite obvious that the supreme court of that state would apply the same reasoning to pardons granted there. In People v. Biggs, the court said (9 Cal. [2d] 514, 71 P.2d 217, 116 A.L.R. 205):

"We are unable to see how the pardon, relieving the offender from the effects or disabilities of his first crime, can in addition prevent the normal application of the statute punishing him for a subsequent offense. In its provisions for increased punishment for prior offenders, the legislature could doubtless make an exception in favor of persons pardoned, if it had reason to believe that such persons, though found guilty of a subsequent offense, were no more dangerous to society, because no more criminal in character, than persons first convicted. It has not seen fit to do so, and unless it does, this court cannot usurp the legislative function of determining the appropriate punishment for offenders coming within the statutory classifications. " (Italics supplied.)

In the Dutton case, 9 Cal. (2d) 505, 71 P.2d 218, it was contended that because Dutton in his plea to the governor of Wisconsin for a pardon of the prior offense had urged his innocence the court must assume that the pardon had been granted upon that ground; but the California court held otherwise and stated that the defendant's innocence was not established by his request for a pardon on that ground. We mention that holding because it is stated here that Stern urged innocence in his application to the governor of California.

The holding of the California court is strongly supported by the courts of New York in People v. Carlesi, 154 A.D 481, 139 N.Y.S. 309, affirmed, 208 N.Y. 547, 101 N.E. 1114, which held that a pardon by the President of a person convicted of a felony in the federal courts did not wipe out the offense and that the federal conviction could be used in a prosecution under their habitual criminal act. This case was subsequently appealed by the defendant to the Supreme Court of the United States, where substantially every question which could be raised under the constitution of the United States was presented by the appellant. The Supreme Court affirmed the New York court. Carlesi v....