Zeimer v. TurnerZeimer v. Turner
- Reporters:
- , ,
- Before:
- Callister
Petitioner appeals from an order of the lower court denying his petition for a writ of habeas corpus in which he alleged that his conviction and commitment as an habitual criminal was illegal.
Thе petitioner was tried upon an information containing two counts, (1) second degree burglary and (2) being an habitual criminal. He was convicted of both counts and sentenced as an habitual criminal tо serve a term in the Utah State Prison of not less than IS years.
Two prior convictions were set forth in thе second count of the information: (1) carnal knowledge in Weber County, Utah, for which, on February 14, 1949, pеtitioner was sentenced and committed to the Utah State Prison for a term of 18 months, and (2) burglary in the seсond degree in Bannock County, Idaho, for which, on March 13, 1955, he was sentenced and committed to thе Idaho State Penitentiary for an indeterminate term not to exceed 15 years.
Prior to 1951, and at thе time of the conviction for carnal knowledge, our habitual criminal statute read as follows: 1
“Whoever has been previously twice convicted of crime, sentenced and committed to prison, in this or any other state, for terms of not less than three years each, shall, upon conviction of a felony committed in this state, оther 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; * * (Emphasis added.)
However, by Chapter 77, Section 1, Laws of Utah 1951, the legislature amended the foregoing statute and it now reads as follows : 2
“Whoever has been previously twice convicted of felonies, sentenced and committed to any prison, shall, upon conviction of a felony committed in this state, other than murder in the first or secоnd degree, be deemed to be an habitual criminal, and shall be punished by imprisonment in the state prison for not less than fifteen years; * *.” (Emphasis added.)
Our carnal knowledge statute is the same today as it wаs at the time of petitioner’s conviction. It reads : 3
“Any person who carnally and unlawfully knows any female over the age of thirteen years and under the age *234 of eighteen years is guilty of a felony.”
(Emphasis added.)
It is the contention of the petitioner that inasmuch as his conviction for carnal knowledge in 1949 could not be considered in determining his status as an habitual criminal under the then existing statute, because the term of imprisonment imposed was for less than three years, it cannot now be considered under the statute as amended in 1951.
In support of this сontention, petitioner cites several decisions of this court. 4 These cases all involved situations which arose prior to ‘the 1951 amendment of the habitual criminal statute. They held that an indeterminаte sentence, having a minimum term of less than three years, could not be considered in determining whethеr the accused was an habitual criminal. These cases, with which we have no quarrel, are not hеlpful in resolving the issue presented in the instant case.
Petitioner argues, however, that the carnal knowledge conviction cannot be considered as a basis for the present sentencе as an habitual criminal since that crime was of the grade or degree of offense to which the pre-1951 habitual criminal statute did not apply. This argument is untenable. The carnal knowledge criminal stаtute has not been changed. ‘It carries the same penalty today as it did at the time of defendаnt’s conviction. It has always been designated as a felony, and its grade or degree as an offеnse has not been altered. It is the habitual criminal statute that has been changed to now include аll felony convictions without regard to the prison term imposed.
Being an habitual criminal is a status, and to be charged with being an habitual criminal is not to be charged with a crime. 5 The habitual criminal statute will аpply only upon a conviction of the criminal offense last charged. Its invocation doеs not inflict additional or further punishment for the prior convictions or impose a new punishment therefor. It only serves to make more severe the punishment for the last or subsequent offense which might be imрosed because of the previous convictions. 6
Our habitual criminal statute does not require thаt the prior convictions of an accused be subsequent to its enactment or amendments therеto. It has been generally held that a state may enact such statutes that would consider and apply convictions occurring prior to their enactment. 7 The same reasoning resorted to in thеse cases would apply to the instant situation. If the *235 legislature had, in 1951, first adopted the habitual criminal statute as it now reads, petitioner’s conviction of carnal knowledge in 1949 could have beеn considered. The fact that it could not have been considered under the statute as it then existed does not rule it out under the present statute. He is charged in the instant case with having been previously twice convicted of a felony. Carnal knowledge was then, and is now, a felony.
Affirmed.
HENRIOD, C. J., and McDONOUGH, CROCKETT and WADE, JJ., concur.
Notes
. 103-1-18, U.C.A.1943.
. 76-1-18, U.C.A.1953.
. 76-53-19, U.C.A.1953.
. 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.
. State v. Wood, 2 Utah 2d 34, 268 P.2d 998.
. 24 B C.J.S. Criminal Law § 1958.