On error to the Camden Quarter Sessions.
For the plaintiff in error, Earl T. Milsop (Mortimer L. Mahler, of counsel).
For the state, Gene R. Mariano, Prosecutor of the Pleas.
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
HEHER, J. Plaintiff in error was convicted of four separate and distinct robberies upon indictments which also alleged his prior convictions of two unrelated high misdemeanors in the Atlantic Quarter Sessions, viz.: on October 29th, 1924, breaking and entering, and on January 20th, 1930, kidnapping. These indictments were tried together; they grew out of a holdup of a taproom and restaurant by four or five men armed with revolvers and a machine gun. The accused was sentenced upon each indictment as a third offender under R.S. 2:103-9, as amended by chapter 219 of the Laws of 1940 (Pamph. L., p. 888), for a term exceeding the maximum sentence for a first offense, the sentences to run consecutively; and he thereupon sued out a writ of error to review the judgment.
The entire record of the trial proceedings has been returned with the writ of error and bill of exceptions, pursuant to R.S. 2:195-16.
Evidence of the earlier convictions was adduced by the State; and the admission of this proof is assigned for error. The accused did not go upon the witness stand; and it is said that the evidence of the prior convictions was therefore inadmissible under R.S. 2:97-13 to affect his credibility, and it "is solely within the province of the court as a question of law," and not of fact for the jury, to determine whether the accused "should be sentenced as a third offender" under section 2:103-9, supra, and thus the admission of the evidence was harmful as tending to establish guilt of the substantive crime laid to the accused in the indictment. The point is not well taken.
There is an aggravation of guilt in the repetition of criminal conduct that warrants the imposition of a heavier penalty when the malefactor is again convicted, if the legislative authority so wills; but it is essential to due process that there be an allegation in the indictment of the previous convictions upon which the enhancement of the punishment depends, and proof thereof upon the trial, or that there be a subsequent proceeding in which shall be determined the identity and status of the prisoner in this regard, and his liability to the
increased penalty. Where a repetition of criminal action renders the accused liable to different and greater punishment, the subsequent offense is treated as a first offense, unless the earlier crimes are specified in the indictment and proved on the trial. State v. Garton, 102 N.J.L. 318; Weeks v. State, 101 Id. 15; Graham v. West Virginia, 224 U.S. 616; 32 S. Ct. 583; 56 L. Ed. 917. The procedure must accord with the convict's fundamental right to be heard on notice as to his liability to the heavier penalty which may be inflicted only upon persistent offenders of the statutory category. Pennsylvania, ex rel. Sullivan v. Ashe, 302 U.S. 51; 58 S. Ct. 59; 82 L. Ed. 43. The usual practice is to allege the prior convictions in the indictment, and to submit the factual issue thereby arising to the jury; and this course is obligatory save where the statute makes other adequate provision for the inquiry, which is not the case here. The procedure has its roots in the fundamental common-law principle that in penal proceedings the accused shall be clearly informed of the charge which he is called upon to meet; and this of necessity includes a specification of the elements of aggravation which under the statute enlarges the grade of the crime by enhancing the punishment. People v. Sickles, 156 N.Y. 541; 51 N.E. Rep. 288; People v. Rosen, 208 N.Y. 169; 101 N.E. Rep. 855. The statute provides that the convict "may be sentenced for any period of time not exceeding three times the maximum period for which he might have been sentenced for a first offense, and no commutation shall be allowed him on the third sentence," and he shall, in addition, "serve the commutation time earned and allowed under any previous sentence for an offense committed in this State." Section 2:103-9, supra.
And it is a corollary of the foregoing that evidence of the earlier convictions is not inadmissible because it may incidentally tend to prove the accused guilty of the substantive crime charged in the indictment. Here, the judge made clear to the jury the reason for the introduction of the evidence of the previous convictions; and he cautioned that those convictions had no bearing whatever ...