State v. Smith

• Decision Date: 08 January 1929
• Citation: 273 P. 323,128 Or. 515
• Parties: STATE v. SMITH. [*]
• Court: Oregon Supreme Court

273 P. 323

128 Or. 515

STATE v. SMITH. ^[*]

Supreme Court of Oregon

January 8, 1929

In Bank.

Appeal from Circuit Court, Multnomah County; John H. Stevenson Judge.

John E Smith was convicted of receiving stolen property, and was sentenced as a fourth felony offender under the Habitual Criminal Act, and he appeals. Affirmed.

This cause involves the validity of chapter 334, General Laws of Oregon 1927, designated as the Habitual Criminal Act of this state. Among other things, that statute provides:

"Sec 1. A person who, after having been convicted within this state of a felony, or an attempt to commit a felony, or under the laws of any other state, government or country of a crime which, if committed within this state, would be a felony, commits any felony, within this state, shall be punished, upon conviction of such second offense, as follows: * * *

"Sec. 3. A person who, after having been three times convicted within this state of felonies or attempts to commit felonies, or, under the law of any other state, government or country, of crimes which, if committed within this state would be felonious, commits a felony within this state, shall be sentenced, upon conviction of such fourth, or subsequent offense, to imprisonment in a state prison for the term of his natural life.

"Sec. 4. If at any time, either after sentence or conviction, it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth in this act, it shall be the duty of the district attorney of the county in which said conviction was had to file an information, accusing the said person of such previous convictions. Whereupon, the court in which such conviction was had shall cause the said person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. If he says he is not the same person or refuses to answer, or remains silent, his plea, or the fact of his silence, shall be entered of record and a jury shall be empaneled to inquire whether the offender is the same person mentioned in the several records as set forth in such information. If the jury finds that he is the same person or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he is the same person, the court shall sentence him to the punishment hereinbefore provided, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the sentence so vacated. * * *"

Section 5 of the act repeals chapter 70, General Laws of Oregon 1921. On March 21, 1928, this defendant was indicted by the grand jury of Multnomah county, Or., for the crime of receiving stolen property, which crime was alleged to have been committed on February 1, 1928. The indictment was in the usual form, and no reference was made therein to the defendant's prior conviction of crime. On April 6, 1928, defendant was convicted of the crime charged in the indictment. On April 20th, the district attorney for Multnomah county, Or., pursuant to the provisions of the Habitual Criminal Act hereinbefore set out, accused the defendant of having been convicted of two previous felonies within the state of Oregon, two previous felonies within the state of Washington, and two previous felonies within the Dominion of Canada. The defendant admitted that he was the same person who was convicted of a felony in the province of British Columbia, Dominion of Canada, on November 10, 1903, as charged in the information, but denied the commission of the other felonies named therein. During the course of the hearing upon the information, the felonies alleged to have been committed in the Dominion of Canada were eliminated, and, as a result of the hearing, the jury returned into court this verdict (omitting title of cause and venue):

"We, the jury, duly empaneled and sworn in the above entitled court and cause, find as follows:

"That the defendant, John E. Smith, is the same person who was convicted of a felony on June 8, 1906, in the county of Whatcom, state of Washington; * * *

"That the defendant, John E. Smith, is the same person who was convicted of a felony on August 26, 1915, in the county of Pierce, state of Washington; * * *

"That the defendant, John E. Smith, is the same person who was convicted of a felony on September 21, 1920, in the county of Malheur, state of Oregon;

"That the defendant, John E. Smith, is the same person who was convicted of a felony on January 18, 1925, in the county of Multnomah, state of Oregon."

Thereafter the court ordered and adjudged that defendant be imprisoned in the Oregon state penitentiary for the term of his natural life.

The defendant, appealing to this court, assigns numerous errors, and asserts that the statute under which this proceeding was had is in conflict with both the federal and the state Constitution.

Irvin Goodman, of Portland (Moe M. Tonkon, Ed Short, and Jack Levin, all of Portland, on the brief), for appellant.

Kern Crandall, Deputy Dist. Atty., of Portland (Stanley Myers. Dist. Atty., of Portland, on the brief), for the State.

BROWN, J. (after stating the facts as above).

The statute involved in this cause was taken from New York, and was applied and construed by the Supreme Court of that state in People v. Gowasky, 244 N.Y. 451, 155 N.E. 737, prior to its adoption by the Legislature of this state. So far as this jurisdiction is concerned, that statute is a new creation; but similar legislation has been in force and effect in other jurisdictions of this country for many years.

The defendant contends that chapter 334, General Laws of Oregon 1927, applies to "similar felonies" only, and asserts that he finds much law in support of this contention. In some jurisdictions, this application would be correct. But our statute plainly provides:

"A person who, after having been three times convicted within this state of felonies * * * or, under the law of any other state, government or country, of crimes which, if committed within this state, would be felonious, commits a felony within this state, shall be sentenced, upon conviction of such fourth, or subsequent offense, to imprisonment in a state prison for the term of his natural life."

This statute is broad, comprehensive, and clear, and admits of but one construction.

The defendant complains that at the time he was tried upon the information of felony, the court had not imposed sentence on his conviction of receiving stolen property, and contends that, after sentence, the crime of receiving stolen property might have been treated as a misdemeanor. This contention is without merit. The defendant was charged with a felony, and, under our statute, the degree of the crime could not be reduced to that of a misdemeanor until and unless so reduced by the penalty imposed by the trial court; and that did not happen.

Defendant likewise complains that the indictment upon which he was tried for receiving stolen property should have alleged his prior conviction. This is erroneous. Under the statutes in some jurisdictions, the indictment shall allege the prior convictions, and there are many decisions in the books that support that contention. This was made a requirement in our own jurisdiction by the enactment of chapter 70, General Laws of Oregon 1921; but this act was repealed by section 5 of chapter 334, General Laws of Oregon 1927, the statute under consideration. Under this statute, the proceeding is had, not for the purpose of determining the guilt or innocence of the defendant, but for the purpose of identifying him as the person alleged to have been convicted of previous felonies. It provides for a special supplementary proceeding, and is much fairer to the defendant than to charge him with crime by an indictment and allege therein his conviction of half a dozen previous felonies. On this subject, Dr. Bishop, an eminent authority on criminal law, has written:

"Under the ordinary forms of the statutory provision, if the offense is the second or third, and by reason thereof the punishment is to be made heavier, this fact must appear in the indictment; because by the rules of criminal pleading, every particular which makes heavier the punishment to be inflicted must be set out. Still there is no reason why the law should not, as in some localities it does permit this matter to be withheld from the jury, or even omitted from the indictment, until the prisoner has been convicted of the offense itself and then brought forward in some proper manner in aggravation of the punishment. A course like this is specially fair to the prisoner as...