Allen, Lyndon B.

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Louisiana Law ReviewVolume 2 | Number 1November 1939Provisions for Foreign Convictions in HabitualCriminal LegislationLyndon B. AllenThis Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationLyndon B. Allen, Provisions for Foreign Convictions in Habitual Criminal Legislation, 2 La. L. Rev. (1939)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol2/iss1/201939] COMMENTSPROVISIONS FOR FOREIGN CONVICTIONS IN HABITUAL:CRIMINAL LEGISLATIONOne of the most difficult problems arising in those stateswhich have multiple offense statutes is to determine the effectto be given convictions obtained in foreign states. Obviously somecriterion is necessary in determining which foreign convictionsare acceptable as a basis for multiple offense convictions. In somestates, foreign convictions have been accorded exactly the sameeffect as local convictions.1 This attempt at the solution of theproblem will be termed for convenience the external view. Onthe other hand, in a number of states, it is not sufficient that theoffense has been declared by a foreign jurisdiction to be of thedegree of seriousness cognizable under the local multiple offenselaw. 2 The gravity of the offense must be weighed in the light oflocal policy. This approach may be termed the limited internalview.8THE EXTERNAL VIEWA majority of the states base their habitual criminal legisla-tion on the external view.4 However, the legislatures differ with1. Ala. Code Ann. (Michie, 1928) § 5281; Cal. Stat. (1935) 1699, c. 602; Conn.Gen. Stat. (1930) § 6501; Ga. Code (1933) § 27-2511; Idaho Code Ann. (1932)§ 19-2414; I1. Rev. Stat. Ann. (Smith-Hurd, 1935) c. 38, § 602; Ind. Stat. Ann.(Burns, 1933) § 9-2207; Iowa Code (1935) §§ 13396, 13397, 13400; Kan. Rev.Stat. Ann. (Corrick, Supp. 1933) c. 21-107a; Ky. Stat. Ann. (Carroll, 1930) §1130; Mass. Ann. Laws (1933) c. 279, § 25; Mo. Stat. Ann. (1932) § 4462; Neb.Comp. Stat. (1929) § 29-2217; N.H. Pub. Laws (1926) c. 396, § 1; N.C. CodeAnn. (Michie, 1935) § 4202; N.D. Sess. Laws (1927) c. 126, § 1, as cited inState v. Malusky, 59 N.D. 501, 230 N.W. 735 (1930); Ohio Crim. Code (Pat-terson, 1924) § 13741; Tex. Ann. Pen. Code (Vernon, 1925) arts. 61-64; UtahRev. Stat. Ann. (1933) § 103-1-18; Va. Code Ann. (Michie, 1930) § 5054; Wash.Rev. Stat. Ann. (Remington, 1932) § 2286; W.Va. Code Ann. (Michie, 1932)§ 6130.2. Arts. 709-713, La. Code Crim. Proc. of 1928; Ariz. Rev. Code Ann.(Struckmeyer, 1928) § 4899; Mich. Comp. Laws (1929) §§ 17338-17340; Minn.Stat. (Mason, 1927) § 10157; Mont. Rev. Codes (1921) § 11595; N.Y. Penal Law(1938) §§ 1941-1943; Okla. Stat. Ann. (1936) tit. 21, § 54.Under the New York Act, a prior conviction in a federal court of trans-porting a stolen automobile in interstate commerce (which could not be afelony under state law) was clearly insufficient to punish as a second offendera defendant who was later convicted in New York of another crime. Peoplev. Sassone, 12 N.Y.S. (2d) 473 (1939). The attitude of the New York courtstoward their Habitual Criminal Act was adequately expressed in People v.Gutterson, 244 N.Y. 243, 250, 155 N.E. 113, 115 (1926), where the court inrefusing to allow a federal conviction of using the mails to defraud as thebasis for a conviction as a second offender, stated: "The Legislature hasfixed a standard which can reasonably include only crimes which are punish-able under the laws of this state. Doubtless other reasonable standards mightbe used which would include the crime of using the mails to defraud. TheLegislature has not seen fit to apply such standards."3. A strict internal view would exclude all foreign convictions. Obviouslyno effect would be given foreign convictions.4. See note 1, supra.LOUISIANA LAW REVIEWrespect to the offenses which shall be embraced within thesestatutes. In some jurisdictions the scope of such laws is very re-stricted. For example, in North Carolina5 additional punishmentis prescribed only for the second offense of manslaughter. TheAlabama! and Texas' statutes are also narrow in scope. In theformer state, it is requisite that both convictions be for two iden-tical crimes. In Texas the offense must be at least of the samenature.In other jurisdictions, the statutes may be regarded as com-prehensive with respect to the offenses included. The Indianahabitual criminal statute provides that the person must havebeen ". . . twice convicted, sentenced and imprisoned in somepenal institution for felony, whether committed heretofore orhereafter, and whether committed in this state or elsewherewithin the limits of the United States of America. . . ."8 TheKansas and Kentucky l statutes make no mention of sentenceor imprisonment, it being sufficient in those states that thereshall have been a previous felony conviction "the punishment ofwhich is confinement in the penitentiary."'" The North Dakotalaw provides that "if a person commits a felony, within this State,after having been convicted of two felonies, whether in this Stateor any other State of the United States,' 1 2 he shall be punishedas a multiple- offender. However, this statute by its terms doesnot apply to "offenses made felonies by statute not involvingmoral turpitude." It is very doubtful that this latter provision isof any consequence. In interpreting it, the Supreme Court ofNorth Dakota held that violations of liquor laws are feloniesinvolving moral turpitude.' In this connection the followingstatement in the concurring opinion of Burr, J., is significant:"Hence, it is clear from these holdings that where a manhas been sentenced upon a conviction for a felony .. he is5. N.C. Code Ann. (Michie, 1935) § 4202.6. Ala. Code Ann. (Michie, 1928) § 5281.7. Tex. Ann. Pen. Code (Vernon, 1925) arts. 61-62.8. Ind. Stat. Ann. (Burns, 1933) § 9-2207. (Italics supplied.) In Kelly v.State, 204 Ind. 612, 624, 185 N.E. 453, 458 (1933), the court said: "We con-strue the statute to mean that, when the charge is based upon crimes com-mitted in other jurisdictions, it is sufficient to prove that the conviction wasfor an offense 'which may be punished with death or imprisonment in thestate prison' in the jurisdiction where the conviction was had."9. Kan. Rev. Stat. Ann. (Corrick, Supp. 1933) § 21-107a.10. Ky. Stat. Ann. (Carroll, 1930) § 1130.11. See notes 9 and 10, supra. Idaho requires only a conviction of aprevious felony. Idaho Code Ann. (1932) § 19-2414.12. N.D. Sess. Laws (1927) c. 126, § 1, as cited in State v. Malusky, 59N.D. 501, 503-504, 230 N.W. 735, .736 (1930).18. State v. Malusky, 59 N.D. 501. 230 N.W. 735. (1930).[Vol. II1939] COMMENTSby that very fact shown to have committed a crime involvingmoral turpitude. '14In determining which crimes are sufficiently serious to war-rant recognition under multiple offense laws, most states adoptingthe external view have not been satisfied to proceed on the vaguedistinction between felony and misdemeanor.15 They have pre-ferred to test the crime in terms of the type of punishment in-volved.1"THE LIITED INTERNAL VIEWIt has been indicated previously that some states in admin-istering their multiple offense laws are not willing to acceptwithout reservation convictions of offenses denounced by otherjurisdictions. 17 This limited internal view presents its own pecu-liar problems. The difficulty arises in determining the basis of14. 59 N.D. at 521, 230 N.W. at 744.15. See Hall, Theft, Law and Society (1935) 300-301, for a discussion ofthe difficulty of classifying crimes into felonies and misdemeanors.Wash. Rev. Stat. Ann. (Remington, 1932) § 2286, is a hybrid statute. Itretains the term "felony" but also lists petit larceny and any other crimes"of which fraud or intent to defraud is an element."A number of other states have "enumerative" statutes and avoid thedistinction between felony and misdemeanors. Cal. Stat. (1935) 1699, c. 602;Minn. Stat. (Mason, 1927) § 10157; N.C. Code Ann. (Michie, 1935) § 4202.Ill. Rev. Stat. Ann. (Smith-Hurd, 1935), c. 38, § 602, provides: "Thatwhenever any person having been convicted of either of the crimes of bur-glary, grand larceny, horse-stealing, robbery, forgery, or counterfeiting,shall thereafter be convicted of any one of such crimes, committed aftersuch first conviction, the punishment shall be imprisonment in the peniten-tiary .. " This statute is unique in that it was passed in 1883 (Ill. Laws1883, p. 76, § 1) and has not been amended though constantly applied bythe courts.16. Kan. Rev. Stat. Ann. (Corrick, Supp. 1933) c. 21-107a, Ky. Stat. Ann.(Carroll, 1930) § 1130, and Mo. Stat. Ann. (1932) § 4462 are applicable toany person convicted of an offense punishable by imprisonment in the peni-tentiary. Ga. Code (1933) § 27-2511, Va. Code Ann. (Michie, 1930) § 5054, andW.Va. Code Ann. (Michie, 1932) § 6130 determine whether the defendanthas been previously sentenced to the penitentiary for any offense. Conn. Gen.Stat. (1930) § 6501 is closely analagous in that it requires actual commitmentin a state prison. A number of states require commitment to prison for acertain length of time: Iowa Code (1935) §§ 13396, 13397, 13400 (three years);Mass. Ann. Laws (1933) c. 279, § 25 (three years); Neb. Comp. Stat. (1929)§ 29-2217 (one year); N.H. Pub. Laws (1926) c. 396, § 1 (three years); UtahRev. Stat. Ann. (1933) § 103-1-18 (three years).The term of punishment under the Wisconsin Habitual Criminal Actvaries, depending upon whether the previous offense was punished by fine,sentence to imprisonment in the county jail, or sentence to imprisonmentin the state penitentiary. Wis. Stat. (1935) H§ 359.12, 359.13, 359.14.Although the trend has not been as pronounced among the states ad-hering to the limited internal view, a number of jurisdictions have avoidedbasing their multiple offense statutes on the distinction between felony andmisdemeanor. Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 4899; Mont. Rev.Codes (1921) § 11595; Okla. Stat. Ann. (1936) tit. 21, § 54.17. See note 2, supra.LOUISIANA LAW REVIEWelimination. The offense must be one which is regarded as a felonyin the local forum. Illustrative of this is Article 709 of the Louis-iana Code of Criminal Procedure 18 which provides:"Any persons who, after having been convicted, withinthis State, of a felony or of an attempt to commit a felony,or who, after having been convicted under the laws of anyother state, government, or country, of a crime which, if com-mitted within this State, would be a felony, commits anyfelony, within this State, upon conviction of such secondoffense, shall be punished ... "19When the statutes denouncing the offenses are couched inidentical language in both the state of conviction and the localforum, the legislative provision above is relatively simple toapply. However, this is not always the case. Statutes tend to varyincreasingly both in language and scope as the classification ofcrimes becomes more and more complex. Offenses which pre-viously were condemned singly are often combined and de-nounced under comprehensive statutes which ignore olddistinctions and technicalities. For example, the crime of theftas defined in the Dominion Criminal Code includes inter aliathe common law crimes of larceny, attempts to commit larceny,and embezzlement. 0 Thus an indictment under this statute mayor may not be for a felony (as that term is commonly employed),depending on the facts under which the conviction was based.It follows that a court of another jurisdiction when. presentedwith a conviction of "theft" as a basis for invoking the multipleoffense statute faces a difficult task. The certificate of convictionthrows little light on the existence or non-existence of felony.Three alternatives are available. The court could refuse to recog-nize the offense because the certificate does not show on its facea prior conviction of felony. No jurisdiction has adopted thisextreme view. It remains for the court to determine whether ornot the certificate should be accorded the effect of showing prima18. See also Arts. 710-711, La. Code Crim. Proc. of 1928.19. Prior to the enactment of Arts. 709-711, La. Code Crim. Proc. of 1928[La. Act 15 of 1928], the Louisiana Supreme Court interpreted Section 974of the Revised Statutes of 1870, which provided for a severe penalty uponconviction for second or third offense, to mean second or third violation ofthe same statutes. State v. Bailey, 165 La. 341, 115 So. 613 (1928).In interpreting Act 15 of 1928, the court in State v. Brown, 185 La. 855,171 So. 55 (1936), held that the name of the foreign offense is unimportantas long as the elements of that offense constitute a Louisiana felony.20. Art. 347, Dominion Criminal Code, as cited in State v. O'Day, 191La. 380, 185 So. 290 (1938). Cf. Tex. Ann. Pen. Code (Vernon, 1925) art. 1410.[Vol. IICOMMENTSfacie a previous conviction of felony. In such situations the alloca-tion of the burden to State or defendant is extremely important.Particularly is this true where defendant has pleaded guilty tothe offense in question. The Louisiana and New York courts ap-pear to be in conflict on the procedure to be adopted. In Louisianathe view prevails that the State must satisfy the court that afelony by local law was committed.2 1 Since the hearing on theinformation is in the nature of a criminal proceeding it is incum-bent on the State to present positive proof of every essentialwithout resort to presumption. In New York 'the contrary viewprevails, at least where the foreign conviction is based on a pleaof guilty.2 The attitude of the New York courts is that the pleaof guilty to a composite offense amounts to pleas of guilty toeach of the several offenses contained therein.It may be desirable that no definite rule be established forthe allocation of the burden of proof. Each case seems to presenta separate problem, the solution of which requires a careful con-sideration of the particular statutes involved. A difference indegree may very well result in a different conclusion. If thescopes of the foreign and local statutes are almost identical, itwould seem unfair to place on the State the burden of disprovingthe bare possibility that the foreign conviction was not for anoffense which could be considered a felony under local law. Onthe other hand, if there is considerable divergence between thestatutes, it should be incumbent on the State to show that a localfelony has been committed; otherwise, the State does not satis-factorily prove its case. However, the complications resultingfrom such an unorthodox approach to the problem may outweigh21. In State v. O'Day, 191 La. 380, 185 So. 290 (1938), the court held thatthe defendant who had previously been convicted in Canada of "stealing anautomobile" was improperly convicted as a third offender in absence of anyproof of asportation (which was not essential to the crime under Canadianlaw), since that proof was necessary to establish that the act committedby defendant in Canada would have amounted to a felony if committedin Louisiana. The Louisiana Supreme Court pointed out that, as the Canadianrecord revealed only a plea of guilty to an indictment for "stealing anautomobile," the state could not satisfy its burden of proof.22. In People v. Dacey, 166 Misc. 827, 3 N.Y.S. (2d) 156 (1938), a de-fendant on trial as a second offender set up as a defense that there was apossibility that a previous Massachusetts conviction for larceny was notbased on an offense which would have been a felony in New York. The courtlaid down as a test: "Was he [defendant] convicted of a crime, which, ifcommitted in this state, would be a felony, not what it could have been byany possibility." (3 N.Y.S. (2d) at 163). The Massachusetts larceny statutecombined several offenses and included one which was not a felony in NewYork, namely, obtaining property by falsely representing a future fact. Theburden was placed on defendant to prove that the conduct for which hewas convicted in Massachusetts did not constitute a New York felony.1939]LOUISIANA LAW REVIEWthe doubtful advantage of giving full effect to local policy. Anattempt to administer statutes of the limited internal typeleads inevitably to such problems." The only solution is theadoption of a statute of the external type.CONCLUSIONThe purpose of habitual criminal legislation is to removefrom society for extended periods those individuals who, becauseof their past record, are deemed likely to commit additionalcrimes in the future. An analysis of the external and limitedinternal views in the light of this purpose serves to show that itis far more effectively accomplished by the former approach.This is apparent, for any person who consistently breaks the lawsof a foreign jurisdiction is likely to show a similar disregard forthe local laws.It is submitted. that the Louisiana habitual criminal actcontains two undesirable features. First, the vague distinctionbetween felony and misdemeanor is an unsatisfactory basis fordetermining the offenses to be included within the scope of thestatute. This difficulty would be avoided if the applicability ofthe habitual criminal act were determined by the punishmentwhich the former conviction carries. Second, the problems in-herent in legislation of the limited internal type must be facedby Louisiana courts. Legislation based on the external view wouldremedy this situation. Such differences as may exist betweenlocal and foreign policy can adequately be adjusted through theexercise of the discretion vested in the court to determine theseverity of the sentence to be imposed on the habitual criminal.24LYNDON B. ALLEN23. For example, in Tennessee grand larceny is the taking and feloniouscarrying away of property valued in excess of $60. Tenn. Code Ann. (Wil-liams, 1934) § 10921. Louisiana, however, requires that the value of theproperty taken be $100 or over. Art. 1053, La. Code Crim. Proc. of 1928. Inan attempt by Louisiana to punish as a multiple offender a person whopreviously plead guilty to grand larceny in Tennessee, would the burden ofproving that the amount involved was less than $100 be placed on the de-fendant?24. Provisions for indeterminate sentences are contained in most habitualcriminal legislation. See the comparatively wide latitude allowed the courtby the Louisiana Act. Arts. 709-711, La. Code Crim. Proc. of 1928.[Vol. II

Provisions for Foreign Convictions in Habitual Criminal Legislation

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Provisions for Foreign Convictions in Habitual Criminal Legislation

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