Smalley v. People

304 P.2d 902, 134 Colo. 360, 1956 Colo. LEXIS 259

• Court: Supreme Court of Colorado
• Decided: December 3, 1956
• Docket: 17783
• Status: Published

Opinions

Mr. Justice Holland

delivered the opinion of the Court.

Plaintiff in error, to whom we will refer as Smalley, is now and has been confined in the state penitentiary since September 9, 1946. At that time, with a codefendant. he was charged with and convicted of burglary with and without force, and on account of a previous record, Smalley was charged in the information as an habitual criminal, having committed three previous felonies. Upon conviction he was sentenced under the habitual criminal act to life imprisonment.

The information, after charging the offense of which he was convicted in 1946, also, in other counts, set out the alleged felonies, particularly the third count which alleged and charged a burglary and larceny conviction on October 24, 1932; the fourth count, a conviction of grand larceny on November 20, 1933; and the fifth count, a conviction of burglary and larceny on April 17, 1936, at which time and upon such conviction he was sentenced to the state penitentiary.

■' On April 24, 1952, Smalley filed a motion to set aside the judgment and life sentence, which he claimed to be void and erroneous, and prayed that he be discharged or resentenced nunc pro tunc according to law. This motion was based upon the claim that at the time defendant was convicted of the charge set forth in the third count of the information and was sentenced to the state reformatory, he was nineteen years of age and this was a first offense. Upon denial of this motion, Smalley prosecutes this writ of error directed to the judgment of the district court of the City and County of Denver.

The statute under which this sentence was imposed is known as the “Habitual Criminal Act”; it was passed in 1945, now appears as C.R.S. ’53, 39-13-1, and the pertinent part thereof is as follows:

“Every person convicted in this state of any felony, who shall have previously three times been convicted, upon charges separately brought and tried, either in this state or elsewhere, of a felony or of an assault to commit a felony, or of a conspiracy to commit a felony, or, under the laws of any other state, government or country, of a crime which, if committed within this state, would be such a felony, shall be adjudged an habitual criminal and shall be punished by imprisonment in the state penitentiary for the term of his or her natural life. Such former conviction or convictions and judgment or judgments shall be set forth in apt words in the indictment or information. * *

It is clear that the required former convictions must be felonies and felony is defined by our constitution in Article XVIII, section 4 as follows:

“The term felony, wherever it may occur in this constitution, or the laws of the state, shall be construed to mean any criminal offense punishable by death or imprisonment in the' penitentiary, and none other.”

A casual reading of this section clearly discloses that “felony” under our constitution is based upon the place of confinement in case of conviction, and the test by which an offense is determined as to whether it is a felony or not, is by the punishment prescribed. Smalley was under the age of twenty-one when he was convicted of his first offense and sentenced to the reformatory. For the purpose of meeting or satisfying the requirements of the constitution this reformatory sentence does not suffice for a felony conviction. If there could be any doubt about the constitutional meaning of the word “felony” in our habitual criminal act, we must, of course, upon construction, give the construction that favors the liberty of the accused. The reformatory sentence was mandatory due to the age of the accused. This court said in People v. Godding, 55 Colo. 579, 583, 136 P. 1011: “ * * * it is manifest that this court has expressly recognized this section as a definition of the term felony, and that the test by which to determine whether an offense is a felony is by the punishment prescribed.”

All of this reveals that the trial court was without power to impose a life sentence under the habitual criminal act by using a previous conviction, namely, the reformatory sentence in 1932. We believe that sufficient has been said herein to clearly support our determination that the sentence imposed upon Smalley is contrary to law; therefore the trial court is directed to set aside the sentence and impose such sentence as it may determine under- the statute in such case made and provided, with full time allowance thereon for time already served.

Mr. Chief Justice Alter, Mr. Justice Knauss and Mr. Justice Sparks dissent.