UNITED STATES оf America ex rel., Forrest Eugene SMITH, Petitioner-Appellant, v. Alfred F. DOWD, as Warden of Indiana State Prison, Respondent-Appellee
No. 12600
United States Court of Appeals Seventh Circuit
Oct. 20, 1959
271 F.2d 292
Alternatively, taxpayer claims that the agreement was superseded by the decree or decrees of the Probate Court, and is, accordingly, not presently controlling. Whether an agreement remains in force after a decree is, again, a question of intent. Freeman v. Sieve, 323 Mass. 652, 84 N.E.2d 16. The burden on this issue is upon taxpayer, and it is a peculiarly hеavy one, as the Massachusetts law in this regard is weighted in favor of the wife. The parties cannot, by their agreement, limit the right of the probate court to order, from time to time, what it deems appropriate for alimony or support of minor children. Wilson v. Caswell, 272 Mass. 297, 172 N.E. 251. This principle is, in essence, a one-way street. The court has no complementary power to relieve the husband of his obligations under the agreement. Schillander v. Schillander, 307 Mass. 96, 29 N.E.2d 686. True, it might make its order for alimony and support less than the amount provided for in the agreement, but that would only affect the extent to which the wife could rely upon contempt proceedings for enforcement. It would not bar an independent action upon the agreement. Freeman v. Sieve, supra. Under these circumstances it is not lightly to be presumed that a decrеe, ephemeral in that it could be revised downward at any time, was accepted by a wife as a substitute for an existing agreement. Taxpayer argues that it was inconsistent with the agreement for the wife to ask for a larger payment. But this overlooks the fact that she had the clear right to do so, and retain the agreement as well. We concur with the Tax Court that the agreemеnt here was not extinguished.
A judgment will be entered affirming the decision of the Tax Court.
John A. Pushor, Deputy Atty. Gen., Edwin K. Steers, Atty. Gen., Mеrl M. Wall, Asst. Atty. Gen., for respondent-appellee.
Before HASTINGS, Chief Judge, and PARKINSON and CASTLE, Circuit Judges.
CASTLE, Circuit Judge.
The appellant Forrest Eugene Smith, hereinafter referred to as petitioner, filed a petition for a writ of habeas corpus in the District Court charging that his imprisonment in the Indiana State Prison is in violation of the Thirteenth and Fourteenth Amendments to the
Allegations of the petition, admitted for the purpose of the motion, established that the petitioner has exhausted
Other material allegations of the petition are that the petitioner is a citizen of the United States; that the imprisonment complained of was imposed by a judgment of the Vigo County Circuit Court of Indiana, entered September 27, 1948, sentencing petitioner as a habitual criminal after trial and finding of guilt of the offense of vehicle taking. The court imposed a sentence committing petitioner for a period of not less than one year nor more than ten years and further ordering that petitioner “be and is hereby committed to the Indiana State Prison as a habitual criminal, to be confined there for a period of his natural life.” Completion of the one to ten year sentence is alleged and it is asserted that continued imprisonment is depriving petitioner of his liberty in violation of the Thirteenth and Fourteenth Amendments.
Petitioner contends that the life sentence is not imposed as punishment for crime, and since all Indiana convicts are subject to hard labor1 his continued imprisonment constitutes involuntary servitude in violation of the
“Neither slavery nor involuntary servitude, except as punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction“.
The contested issue presented by this appeal is whether petitioner‘s present imprisonment, attributable solely to the life sentence imposed pursuant to the Indiana Habitual Criminal Act, constitutes punishment for crime.
The provisions of the Indiana Habitual Criminal Act under which the punishment was imposed (
“Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal, and he or she shall be sentenced to imprisonment in the state prison for and during his or her life.”
“To authorize a sentence of imрrisonment for life under this act, the indictment or affidavit shall allege that the defendant has been previously twice convicted, sentenced and imprisoned in some penal institution, for felonies, describing each separately. If the trial jury, in their verdict, find these facts to be true, and convict such defendant of the third felony, the trial court, after passing sentence of imprisonment for а specific term, as prescribed by the statute, shall proceed to sentence the defendant to imprisonment for his or her life.”
The state or condition of being a habitual criminal is not a crime but it is a status or circumstance which affords a proper basis for classifying such individual as one subject to greater or additional punishment than would otherwise be imposed on the conviction of a subsequent offense. Goodman v. Kunkle, 7 Cir., 72 F.2d 334.
The language of
It is recognized that
The Supreme Court of Indiana in Kelley v. State, 204 Ind. 612, 185 N.E. 453, 457, in sustaining the constitutionality of the Habitual Criminal Act against attack on grounds other than the Thirteenth Amendment observed:
“* * * It simply imposes a heavier penalty for the commission of a felony by one who had been previously twice convicted and imprisoned for the commission of a felony. The punishment is for the new crime only.”
Petitioner regards Smith v. State, 237 Ind. 532, 146 N.E.2d 86, 87 as indicating a changed interpretation of the statute to the effect that the additional penalty of life imprisonment is imposed as punishment for the status of being a Habitual Criminal. In that case the Indiana Supreme Court in disposing of the identical question here presented said:
“However, the provision of the Indiana statute requiring the accused to be charged both with the commission of the third felony and with being an habitual criminal and to be sentenced upon both counts does not in our opinion violate either the 13th or 14th Amendments of the U. S. Constitution. The Habitual Criminal Statute does not impose punish-
ment (life imprisonment) for an additional crime, but for the status or condition of being an habitual criminal. See Goodman v. Kunkle, 1932, 7 Cir., 72 F.2d 334; Metzger v. State, 1938, 214 Ind. 113, 13 N.E.2d 519.
“Appellant has conceded that the imposition of the penalty of life imprisonment alone for the third felony would be constitutional. We know of no valid reason why the legislature could not constitutionally add to the ordinary penalty for the felony an additional punishment, towit: life imprisonment, when the felоny is committed by a third time offender who is thus classified as an habitual criminal.”
We do not so interpret Smith v. State. The statement there made that “The Habitual Criminal Statute does not impose punishment (life imprisonment) for an additional crime, but for the status or condition of being an habitual criminal” was in our judgment intended as a reaffirmation of the court‘s previous holding in the Metzger case and our observation in Goodman v. Kunkle that the Act did not create any new or independent crime, nor attempt to make the status itself a crime. To interpret the court‘s language in the Smith case differently would be out of harmony with the authorities cited in conjunction therewith, repugnant to the context which follows and in direct conflict with the express holding of the Court.
Holding, as we do, that there is no violation of the Thirteenth Amendment it follows that petitioner‘s claim based on the Fourteenth Amendment is withоut merit.
Petitioner‘s references to Woods v. State, 234 Ind. 598, 130 N.E.2d 139 and McCarren v. United States, 7 Cir., 8 F.2d 113 are not pertinent. Those cases involved multiple convictions of the same offense for the same act. The judgment order in the instant case did not convict petitioner more than once of the same offense for the same act and the imposition of two penalties for the single offense of vehicle taking was not only authorized but was required by statute.
Attornеy Jerry P. Belknap, by appointment of this court, and his associate William P. Wooden, have served faithfully and diligently, without compensation, as counsel for petitioner in this court. We extend to them our appreciation for their services.
For the reasons hereinbefore set forth the order of the district court is affirmed.
Affirmed.
HASTINGS, Chief Judge (concurring).
I concur in Judge CASTLE‘S opinion holding that imprisonment under the Indiana Hаbitual Criminal Act1 is “punishment for crime” under the Thirteenth Amendment.
It is appropriate to analyze this statute in terms of an essential element of a criminal conviction, i. e., the conduct of the defendant charged with a crime.2
The law of crimes punishes a person for his proscribed conduct. In most instances the conduct is intentional, although certain statutes impose strict liability for “public policy” crimes.3 But in either case, punishment is levied because of the prisoner‘s conduct.
The Indiana Habitual Criminal Act requires the commission and conviction of a third felony. Commission of a third felony, with a record of two prior convictions, is the conduct upon which the life imprisonment is based.4
The fact that Indiana‘s statute provides procedurally (
To describe this process as punishment for a “condition” or “state” or a “status” or “circumstance” of habitual criminality (precipitated by the commission and conviction of three prior felonies) beclouds the fact that this statute provides for conviction for the criminal conduct of committing a third felony with a record of two prior criminal convictions. This being so, it cannot violate the Thirteenth Amendment.
PARKINSON, Circuit Judge (dissenting).
The Indiana Habitual Criminal Act provides that upon a third felony conviction one, having been previously twice convicted and imprisoned for a felony, “shall be deemed and taken to be an habitual criminal“. The Act mandates first the imposition of the penalty prescribed by statute for such third felony and then the imposition of a life sentence.
In 1933, the Supreme Court of Indiana, in the case of Kelley v. State, 204 Ind. 612, on page 623, 185 N.E. 453, on page 457, unequivocally decided that the punishment provided by the Act was simply a heavier penalty for the commission of the third felony and flatly stated:
“The punishment is for the new crime only.”
However, in so deciding the Court failed to take into account the plain wording of the Act which would, under such a construction, invalidate the Act because of the double sentencing for the third felony, i. e., the sentence prescribed by the statute for such third felony and another separate sentence of life imprisonment. This was signalized by Judge Gilkison in his dissenting opinion in Witte v. Dowd, 1951, 230 Ind. 485, 506, 102 N.E.2d 630.
The question as to whether the Act violated the Thirteenth Amendment was before the Court in the Witte case. However, the majority never reached that question and it was not until the case of Smith v. State, 1957, 237 Ind. 532, 146 N.E.2d 86, that the Indiana Supreme Court passed on this question. In that case it apparently disavowed Kelley and squarely held that the Act imposes life imprisonment as punishment “for the status or condition of being an habitual criminal.” That is a correct interpretation of the Act and clearly invalidates it as being violative of the Thirteenth Amendment.
Although the Indiana Supreme Court in Smith holds that the Act does not violate the Thirteenth Amendment, it is оf
The judgment of the committing court, which conforms to the Act,1 patently demonstrates that the petitioner is now serving a sentence of life imprisonment for the status of being an habitual criminal and not for a crime. It reads as follows:
“It is therefore ordered, adjudged, and decreed by the court, thаt the defendant, Forrest Eugene Smith, is guilty of the offense of Vehicle Taking as charged in the affidavit in this cause, and that for the offense so committed by him against the peace and dignity of the State of Indiana, the said defendant, Forrest Eugene Smith be and is hereby committed to the Indiana State Prison to be there confined for a period of not less than one (1) nor more than ten (10) years, and that he be and is hereby disfranchised and rendered incapable of holding any office of trust or profit, for a period of five (5) years, and that the State of Indiana do have and recover of the defendant its costs paid out and expended in the sum of $-------.
“It is further ordered by the court that the defendant, Forrest Eugene Smith be and is hereby committed to the Indiana State Prison as a Habitual Criminal, to be there confined for a period of his natural life.”
The life sentence is for being “a Habitual Criminal“. It is not a sentence for the commission of the third felony of vehicle taking. Sentence therefor was separately imposed and has been served by the petitioner. The life sentence is imprisonment for a status. It is not “punishment for crime” and violates the Thirteenth Amendment.
In my оpinion, the District Court erred in dismissing the petition. I would reverse.