Home/Nevada Supreme Court/Howard v. State

Howard v. State

422 P.2d 548, 83 Nev. 53, 1967 Nev. LEXIS 222
Nevada Supreme Court·Decided January 16, 1967·No. 5100·Published·Cited by 27 cases

Opinion

*55 OPINION

By the Court,

Collins, J.:

Appellant was found guilty of the crime of attempted robbery, a felony. In an amended information the state alleged appellant to have been previously convicted of three felonies and requested the court to punish him as an habitual criminal as authorized in NRS 207.010 1 at the habitual criminal hearing the appellant contended that he was constitutionally entitled to have a jury trial. The court ruled against , him, *56 heard the evidence, found him to have been previously convicted of three felonies and sentenced him to life imprisonment. From that ruling and sentence he appeals.

Appellant urges that Article 1, Section 3 of the Nevada Constitution which provides, “The right of trial by Jury shall be secured to all and remain inviolate forever,” renders infirm NRS 207.010(4) (see footnote 1). In the alternative he contends that the statute can be constitutionally upheld if the word “court” be construed to mean “judge and jury” rather than “judge” alone. We disagree, approve the ruling and affirm the conviction.

The authorities are in complete agreement that an habitual criminal proceeding does not charge a separate offense, but is held solely to determine facts, which if true, will increase punishment. State v. Bardmess, 54 Nev. 84, 7 P.2d 817 (1932); Carter v. State, 79 Nev. 89, 378 P.2d 876 (1963); Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); Graham v. West Virginia, 224 U.S. 616 (1912); State v. Mayo, 101 So. 228 (Fla. 1924); State v. Furth, 104 P.2d 925 (Wash. 1940); Haffke v. State, 30 N.W.2d 462 (Neb. 1948); Poppe v. State, 52 N.W.2d 422 (Neb. 1952); State v. Morton, 338 S.W.2d 858 (Mo. 1960); State v. Hoffman, 385 P.2d 741 (Ore. 1963); Tyson v. Hening, 136 S.E.2d 832 (Va. 1964). It is not a separate offense to be an habitual criminal, but a status. State v. Hoffman, supra. The hearing is procedural, is not a separate crime, and does not increase punishment of the principal offense for which a defendant is on trial. The statute *57 simply allows enlarged punishment for one who cannot be rehabilitated, and who as a recidivist, repeatedly violates the law. Society has the right to remove from its ranks for a longer time those who refuse to conform to a lawful mode of living.

At the hearing of a person alleged to be an habitual criminal two facts must be proved: (1) identity of the person; and (2) conviction of prior felonies. The state’s proof must be beyond a reasonable doubt. Hollander v. State, supra. We hold that the trial judge alone may receive that proof.

The words “trial by jury” referred to in the Nevada Constitution (Art. I, Sec. 3) mean trial as it existed at the common law as of the time of adoption of our state charter. In State v. McClear, 11 Nev. 39 (1876), at page 44, a statement is found having to do with trials by jury and is appropriate: “This provision [Art. I, Sec. 3, Nevada Constitution] has reference to the right of trial by jury as it existed at the time of the adoption of the Constitution, and we are called upon to determine what were the constitutional elements of a jury as understood at that time. It has been frequently decided in many of the older states that the trial by jury contemplated by the constitution is a trial by a common law jury.” And at page 52, this court further said: “Cases which before the constitution were not triable, need not be made so now. Parties cannot now be deprived of trial by jury who were entitled to demand it at and before the formation of the constitution. And, on the other hand, cases not having the right at that time to demand a jury, cannot now demand a jury as of right, because of the constitutional provision.”

What we have said before relative to the nature of the habitual criminal hearing irresistibly draws us to the conclusion that it is not a “case” in the constitutional sense and appellant has no right to a jury trial. The legislative direction that “the court shall determine the issue” is constitutional.

Judgment affirmed.

Thompson, C. J., and Zenoff, J., concur.

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Howard v. State, 422 P.2d 548, 83 Nev. 53, 1967 Nev. LEXIS 222 (Neb. 1967).

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