State v. Walsh

• Decision Date: 31 December 1943
• Docket Number: 6643
• Citation: 144 P.2d 757,106 Utah 22
• Court: Utah Supreme Court
• Parties: STATE v. WALSH

144 P.2d 757

106 Utah 22

STATE v. WALSH

No. 6643

Supreme Court of Utah

December 31, 1943

Appeal from District Court, Third District, Salt Lake County; J Allen Crockett, Judge.

Emmett Patrick Walsh was convicted under an information charging him with burglary in the second degree and with being an habitual criminal, and he appeals.

Reversed and remanded.

Ray S McCarty, of Salt Lake City, for appellant.

Brigham E. Roberts, Dist. Atty., of Salt Lake City, and Grover A Giles, Atty. Gen., for respondent.

WOLFE, Justice. LARSON, McDONOUGIT, MOFFAT, and WADE, JJ., concur.

OPINION

WOLFE, Justice.

The defendant, Emmett Patrick Walsh, was charged by information with the crime of burglary in the second degree and with being an habitual criminal. He was tried before a jury on a plea of not guilty and convicted. On May 14, 1943, he was sentenced and committed to the Utah State Prison for an indeterminate term of not less than fifteen years. Subsequently, and within the time allowed by law, the defendant prosecuted this appeal.

In the information the State accused the defendant of the "Crime of Burglary in the Second Degree and Being an Habitual Criminal" and charged that the defendant "broke and entered the apartment of C. H. Christensen in the night time with intent to commit larceny therein." Then followed an allegation that the defendant on "the 9th day of December, 1937, was convicted of the crime of Burglary in the First Degree * * * in the State of Idaho, and * * * sentenced to serve a term of not less than seven nor more than fifteen years, in the State Prison of Idaho, and * * * was committed to the State Prison to serve said term"; and an allegation that the defendant "on the 18th day of February, 1931, was convicted of the crime of Grand Larceny in the * * * State of Utah, and * * * sentenced to serve a term of not less than one or more than ten years in the State Prison of the State of Utah" and that he was committed to said prison to serve said term.

Before pleading to the information the defendant moved the court to strike from it all of the allegations relating to the charge that the defendant was an habitual criminal. Defendant also filed a motion to quash the information on the grounds (1) that it was improper to charge the defendant with the substantive crime, to wit: burglary in the second degree, and with being an habitual criminal in the same pleading; and (2) that the information did not state facts sufficient to charge the defendant with being an habitual criminal in that it did not appear that he had been twice previously convicted of a crime and sentenced and committed to the prison for terms of not less than three years. Both these motions were denied and the rulings thereon were assigned as error.

The Utah Habitual Criminal Statute was enacted in 1896. Laws of Utah 1896, p. 262. It has continued in force with only minor changes. The Statute as it appears in the 1943 Annotated Code provides:

"103-1-18. 'Habitual Criminal' Defined--Punishment. 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 any other state, for terms of not less than three years each, shall, upon conviction of a felony committed in this state, other than murder in the first or second degree, be deemed to be an habitual criminal, and shall be punished by imprisonment in the state prison for not less than fifteen years * * *."

The State framed its information on the theory that a person who has been sentenced and committed to the State Prison for an indeterminate sentence of from one to ten years has been sentenced and committed to the State Prison for a term of "not less than three years" within the meaning of the Habitual Criminal Statute. On this appeal it contends that an indeterminate sentence to prison is a sentence for the maximum, that the sentence and commitment from one to ten years is a sentence and commitment for ten years, and that it is therefore a sentence of not less than three years within the meaning of the Habitual Criminal Statute. This view was adhered to by the Iowa Supreme Court in the case of Haley v. Hollowell, 208 Iowa 1205, 227 N.W. 165.

This is the only case brought to light by our research or by the research of counsel which directly considered this question. It is squarely in point and holds that a sentence of from one to ten years is a sentence of "not less than three years" within the meaning of an habitual criminal statute which provided that a person who had been twice convicted of a crime, sentenced, and committed to prison for terms of not less than three years should be deemed to be an habitual criminal upon a subsequent conviction. In so holding the court reasoned that an indeterminate sentence of from one to ten years is a sentence for the maximum, to wit: ten year, and that ten years is not less than three years.

Numerous other cases are cited which hold that an indeterminate sentence setting a minimum and a maximum is a sentence for the maximum. State v. Roberts, 91 Utah 117, 63 P.2d 584; Cardisco v. Davis, 91 Utah 323, 64 P.2d 216 (concurring opinion); Lee Lim v. Davis, 75 Utah 245, 284 P. 323, 76 A. L. R. 460; State v. Empey, 65 Utah 609, 239 P. 25, 44 A. L. R. 558; Mutart v. Pratt, 51 Utah 246, 170 P. 67; In re Conditional Discharge of Convicts, 73 Vt. 414, 51 A. 10, 56 L. R. A. 658; In re Lee, 177 Cal. 690, 171 P. 958; Peoplev. Meyers, 31 Cal.App.2d 515, 88 P.2d 212; People v. Washington, 264 N.Y. 335, 191 N.E. 7; People v. Joyce, 246 Ill. 124, 92 N.E. 607, 20 Ann. Cas. 472; Story v. Rives, 68 App. D.C. 325, 97 F.2d 182. However, none of these cases involved the construction of habitual criminal statutes. They cannot, therefore, be construed as holding that a sentence from one to ten is a sentence of "not less than three years" within the meaning of an habitual criminal statute. They are, however, persuasive.

The position of the defendant finds support in certain statements made in Valdez v. State, 49 Ariz. 115, 65 P.2d 29, 31, wherein the court construed a statute which provided for a heavier punishment upon the showing of prior convictions of a crime punishable by "imprisonment * * * for any term exceeding five years." The defendant contended that a crime carrying a penalty of "not less than one nor more than fifteen years" was not a penalty coming within the language "any term exceeding five years." The court stated: "If the language of section 4898, supra, had been for 'a term not less than five years', the position of defendant would be correct, but such was not the case. We think the only reasonable construction of the words 'any term exceeding five years' refers to the maximum and not to the minimum sentence which may be imposed." Thus while the statement is dicta, the court did indicate that it would have held that "not less than one nor more than fifteen years" would not come within the language "a term not less than five years," which holding would have corresponded with the defendant's contention here.

The indeterminate sentence law did not come into effect in Utah until 1913, Laws of Utah, 1913, c. 100, p. 192. As amended (see 105-36-20, U. C. A.) it provides that the court is not to fix a definite term of imprisonment; "but that the sentence and judgment of imprisonment in the state prison" should be "for a period of time not less than the minimum and not to exceed the maximum term provided by law for the particular crime for which such person has been convicted." From 1896, when the first habitual criminal act was enacted, to 1913, when the first indeterminate sentence law became effective, a person convicted of a crime was sentenced by the trial judge to a definite term. Then, as now, there were minimum and maximum punishments provided for each crime. The judge imposing sentence was to take into consideration the facts surrounding the commission of the crime and then impose a sentence for a definite number of years which would be not less than the minimum nor more than the maximum provided by law.

Under such a procedure where a defendant was convicted of a crime, sentenced and committed for a definite term, it could be readily ascertained whether such definite term was a term of "not less than three years." A defendant was not deemed to be an habitual criminal merely upon conviction for three felonies--but the statute required two convictions for crimes where the judge imposed sentences and committed the defendant for terms of not less than three years. Some crimes were of such gravity and seriousness that the legislature provided minimum sentences of three years and over; but in the majority of cases the minimum sentence might in the discretion of the trial judge, be for less than three years for the minimum was itself less than three years.

As to these latter crimes it is obvious that the legislature intended that they should form the basis of an habitual criminal charge only if the trial judge, who was familiar with the surrounding circumstances, thought the criminal record or conduct to be serious enough to warrant the imposition of a sentence for a term of three years or more. If there were extenuating circumstances so that the trial judge imposed a sentence for a term of less than three years, the conviction for such a crime could not be used as the basis for an habitual criminal charge.

Thus it appears that it was the intent of the legislature in case of most crimes to have someone pass upon the circumstances surrounding the commission of the crime, and make a determination as to whether the...