McDonald v. Commonwealth , 1899 Mass. LEXIS 1081 ( 1899 )

Morton, J.

The first assignment of error is based on a misapprehension of St. 1887, c. 435, and of the offence with which the plaintiff was charged, and for which he was sentenced. The charge in the indictment was for forging and uttering certain checks in this State. The plaintiff in error was found guilty and sentenced for that, not for the crimes of which he had been previously convicted in New Hampshire and in this State. St. 1887, c. 435, does not authorize a trial here for offences committed in another State, or the imposition of a penalty for crimes committed elsewhere. It imposes a heavier penalty in the case of a previous offender, and provides that the fact that he has offended before may be shown by convictions in this or another State or both. There is nothing unconstitutional in these provisions. In fixing a penalty regard may be had to previous conduct without limiting it to the jurisdiction in which the last offence was committed. Commonwealth v. Graves, 155 Mass. 163. The statute is not in violation of the Fourteenth Amendment to the Constitution of the United States. Sturtevant v. Commonwealth, 158 Mass. 598. It does not operate to deprive a person sentenced under it of the equal protection of the laws. It bears alike upon all persons within the Commonwealth and similarly situated, who have committed felonies in this State since it took effect, or who may commit felonies hereafter. Tinsley v. Anderson, 171 U. S. 101, 106. Whether the punishment is cruel and unusual, and may therefore come within the prohibition which forbids a State from abridging “ the privileges and immunities of citizens of the United States,” or from depriving any person “ of life, liberty, or property without due process of law,” will be considered later.

The second assignment is disposed of by what has already been said.

The third assignment rests on the contention that the allegations in regard to the previous convictions charge the crime of being an habitual criminal, and constitute a count which is improperly joined to those which precede it. It was necessary to allege and prove the previous convictions. Tuttle v. Commonwealth, 2 Gray, 505. Commonwealth v. Cody, 165 Mass. 598. If proved as alleged, they aggravated the offence with which the plaintiff was charged, and if he was convicted of that required that he should be sentenced as provided by the statute. They did not constitute of themselves a crime, and the words of presentment, as if another count was begun with which the allegations were preceded, properly could be rejected as surplusage. Sturtevant v. Commonwealth, and Commonwealth v. Cody, ubi supra. Commonwealth v. Walker, 163 Mass. 226.

In regard to the fourth assignment, it is to be said that there is no constitutional provision' in this State guaranteeing counsel to a prisoner, and no statutory provision in respect to' counsel except in the case of an indictment for a capital crime. Pub. Sts. c. 150, § 19. St. 1891, c. 379, § 4. Conant v. Burnham, 133 Mass. 503, 506. Article VI. of the Amendments to the Constitution of the United States does not apply to the States or to proceedings in State courts. Commonwealth v. Whitney, 108 Mass. 5. The agreed facts show that the rights of the plaintiff in error were carefully guarded and stated, and explained to him at the trial.

The fifth assignment is to the effect that the punishment provided by the statute is a cruel and unusual punishment, and is contrary to Article V. of the Amendments to the Constitution of the United States, and to Article XXVI. of the Declaration of Rights. It is probable that Article VIII. instead of Article V. of the Amendments to the Constitution of the United States is intended, as the latter contains no reference to cruel or unusual punishments. But neither Article V. nor Article VIII. applies to the States. In re Kemmler, 136 U. S. 436, 446. Commonwealth v. Hitchings, 5 Gray, 482. Commonwealth v. Whitney, ubi supra.

A similar provision in regard to cruel and unusual punishments is found, however, in Article XXVI. of the Declaration of Rights, except that the language there is that “ no magistrate or court of law shall . . . inflict cruel or unusual punishments.” As was said in Sturtevant v. Commonwealth, “ This article is directed to courts, not to the Legislature.” It is for the Legislature to determine what acts shall be regarded as criminal, and how they shall be punished. It would be going too far to say that their power is unlimited in these respects. Ordinarily, the terms “ cruel and unusual ” imply something inhuman and barbarous in the nature of the punishment. In re Kemmler, ubi supra. But it is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offence as to constitute a cruel and unusual punishment. However that may be, it cannot be held, we think, that the punishment is “cruel and unusual” where the statute provides, as it does here, that one who has been convicted in this State of a felony committed here since it went into effect, or who twice before in this State or another State or both has been sentenced and committed to prison for terms of not less than three years each, shall be punished by imprisonment in the state prison for twenty-five years. The penalty was determined, no doubt, by the view that in such a case the criminal habit has become so fixed and the hope of reformation is so slight that the safety of society requires and justifies a long continued imprisonment of the offender. The statute provides, however, that if it appears to the Governor and Council at any time that the convict has reformed, they may release him conditionally for the residue of the term. We think that the statute is not open to the objection of imposing a cruel and unusual punishment.

The sixth assignment is disposed of by what has been said in regard to the first assignment.

The seventh assignment rests on the contention that the statute is ex post facto in its character, and is disposed of not only by what has been said under the first assignment, but also by Sturtevant v. Commonwealth, where the same objection was taken and overruled.

The eighth assignment is, first, that under the statute in question the plaintiff in error has been tried here for an offence committed in New Hampshire, and for which he was punished there; and, secondly, that the proceedings at the trial by which the jury after returning a verdict upon the counts in regard to forging and uttering were sent out again to deliberate upon the habitual criminal charge, and afterwards returned a verdict upon that, were irregular, prejudicial, and unconstitutional. What has been previously said in regard to the nature of the offence with which the plaintiff in error was charged disposes of the first ground taken in this assignment. As to the second ground, it appears that the judge charged the jury, and they retired, and afterwards came into court to render their verdict. They were asked by the clerk, as to the first, second, third, and fourth counts successively, whether the prisoner was guilty or not guilty, and they returned a verdict of guilty on each count. Thereupon the clerk was about to inquire of them in regard to the habitual criminal charge, when the judge arose and said that he had forgotten to charge upon that, and proceeded to do so, and they retired again and afterwards came into court and rendered a verdict of guilty on that part of the indictment. We see nothing prejudicial or unconstitutional in this. Pritchard v. Hennessey, 1 Gray, 294. Florence Sewing Machine Co. v. Grover & Baker Sewing Machine Co. 110 Mass. 70, 82.

It was within the power of the court to correct the error or omission in the way in which it did, and to send the jury out again, after it had rendered its verdict on the counts for forgery and uttering, to deliberate on the habitual criminal charge. Mason v. Massa, 122 Mass. 477. Brown v. Dean, 123 Mass. 254.

Under the ninth assignment, if it may be called such, no errors are alleged, and there is nothing for us to consider.

The result is, that, none of the errors assigned being supported, the entry must be, Judgment affirmed.