State v. Malusky

230 N.W. 735, 59 N.D. 501, 71 A.L.R. 190, 1930 N.D. LEXIS 169

Opinions

Ncjessle, JT.

On May 28, 1928, Joe Malusky entered a plea of guilty to a charge of engaging in the liquor traffic as a second offense. He was sentenced to serve a term of one year and six months in the state penitentiary. Thereafter and on the 24th of April, 1929, an information was filed in the district court of Cass county charging that Malusky had, prior to the 28th of May, 1928, been convicted of two other felonies, to wit: grand larceny in the state of Wisconsin and perjury in the state of Minnesota and duly sentenced therefor. Thereafter the district court of Cass county ordered that Malusky be remanded to that court to the end that he might be tried and resentenced under said information. He was accordingly remanded to the district court, appeared to answer to the charge as contained in the later information, waived a trial on the question as to whether he had committed two prior felonies as charged therein, admitting that he had done so, requested that he be permitted to establish the facts with reference to the crime of violating the prohibition law as a second offense for which he had been theretofore sentenced on May 2, 1928, and challenged the jurisdiction of the court to impose any further sentence upon him on account of his previous conviction of felony. The court denied his request, overruled his challenge, and resentenced him to serve a term of four years in the state penitentiary beginning as of date May 28, 1928. Pursuant to such sentence he was again committed to the state penitentiary. Thereafter he perfected the instant appeal.

Chapter 126, Session Laws 1927, under which the judgment and sentence from which the instant appeal is taken was imposed, provides:

“See. 1. That if a person commits a felony, within this state, after having been convicted of two felonies, either in this state or any other state of the United States, the maximum punishment or penalty of imprisonment for such offense shall be twice the maximum sentence now or hereafter prescribed by law for a first conviction of said offense.

“Sec. 2. That if a person commits a felony, within this state, after having been convicted three or more times of felonies, either in this state or any other state of the United States, the maximum punishment or penalty of imprisonment for such offense shall be life imprisonment.

“Sec. 3. If at any time before judgment and sentence, or at any time after judgment and sentence but before such judgment and sentence is fully executed, it shall appear that one convicted of a felony, has been previously convicted of crimes as set forth in sections one, or two of this act, it shall be the duty of the state’s attorney of the county in which such conviction was had to file an information with the court wherein such conviction was had accusing such person of such previous •convictions, whereupon the court ‘shall cause the said person, whether confined in prison or otherwise, to be brought before it, either in term or in vacation, and shall inform him of the accusations contained in said information by reading the same to him, and of his right to be tried as to the truth thereof according to law, and shall require such person to say whether he has been convicted as charged in said information or not. If he shall say that he has not been convicted as therein charged or refuses to answer, or remains silent, his plea, or the fact •of his silence shall be entered of record, and the court shall make an order directing that the truth of the accusations made in said information be submitted to a jury at the then present term of court, if in term time and a jury be in attendance, unless continued for cause, or at the next ensuing term of court when a jury is in attendance. If the jury shall find and determine by evidence beyond a reasonable doubt that the accused has been guilty of one or more convictions as charged in said information, or if the accused acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment or penalty of imprisonment as in sections one or two provided, and shall vacate any previous judgment and sentence if one has heretofore been entered or imposed.

“Whenever it shall become known to any warden or person in charge of the place of imprisonment wherein such person is confined, or to any probation, parole, police officer, or other peace officer that any person charged with or convicted of a felony, has been previously convicted within the meaning of sections one or two of this act, it shall be the duty of such person forthwith to report the facts to the state’s attorney of the county wherein the charge is pending or the conviction was had.

“Sec. 4. Provided, that the provisions of this Act shall not apply to offenses made felonies by statute not involving moral turpitude.”

The fourth section of the act above quoted is that on which the appellant grounds this appeal. His first and chief contention is that the violation of the state prohibitory act, on account of which he was sentenced, though a felony, is not an offense involving moral turpitude.

The term “moral turpitude” is not new. It has been used in the law for centuries. It connotes something which is not clearly and certainly defined. See note in 43 Harvard L. Rev. p. 111. Generally it may be said that moral turpitude is evidenced by an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general. Drazen v. New Haven Taxicab Co. 95 Conn. 500, 111 Atl. 861; Kurtz v. Farrington, 104 Conn. 257, 48 A.L.R. 259, 132 Atl. 540; Holloway v. Holloway, 126 Ga. 460, 7 L.R.A.(N.S.) 272, 115 Am. St. Rep. 102, 55 S. E. 191, 7 Ann. Cas. 1164; Re Henry, 15 Idaho, 758, 21 L.R.A.(N.S.) 207, 99 Pac. 1054; Ex parte Mason, 29 Or. 23, 54 Am. St. Rep. 772, 43 Pac. 651; Rudolph v. United States, 55 App. D. C. 362, 40 A.L.R. 1042, 6 F. (2d) 487; 41 C. J. 212, and cases cited. Many cases may be found in the boohs dealing with the meaning of the term and attempting to apply it under varying facts and circumstances. Most of the cases seek to make a distinction between offenses mala prohibita and mala in se, and hold that only offenses mala in se involve moral turpitude. If this be the test it avails us little for the difficulty then is to discern the line between the two. History discloses that all offenses were at some time merely mala prohibita and as civilization advanced and social and moral ideals and standards changed they became one after another mala in se. Moral turpitude “is a term which conforms to and is consonant with the state of public morals; hence it can never remain stationary.” Drazen v. New Haven Taxicab Co. 95 Conn. 500, 111 Atl. 861. At one time the wilful killing of another was not considered evil in itself, and this is so among some savage peoples today. At one time honor was vindicated and guilt and innocence determined by mortal combat between factions or individuals. Even now killing is justified in time of war. Larceny became an offense only as property rights were defined and society sought to benefit itself and protect the individual by penalizing the appropriation of property by those who could not justify such appropriation by the prescribed rules. Sexual crimes became such only as man progressed in civilization. At one time, not so greatly, remote, prostitution was not regarded as immoral and in some countries is not even now banned by the law. However much every man may be answerable for his acts to his own conscience, society cannot permit each individual to say for it what is moral and what is immoral. To him who deliberately kills, murder is not immoral. To him who steals, larceny is not immoral. To him who lives only for the gratification of his appetites there is no immorality in doing so. Some standard must exist according to which the determination as to whether act or conduct is moral or immoral is to be made. That standard is public sentiment — the expression of the public conscience. It may be manifest, unwritten, and more or less nebulous, as legend, as tradition, as opinion, as custom, and finally crystallized, written as the law. Thus the standard is fixed by the consensus of opinion, the judgment of the majority. When the majority is slight there is, of course, greater opposition on the part of the minority to the standard. The majority may become the minority and the standard change. But so long as it is established measurement must be made according to its terms. So we must say that those things which are discountenanced and regarded as evil and accordingly forbidden by society, are immoral and that the doing of them contrary to the sentiment of society thus expressed involves moral turpitude, and this regardless of the punishment imposed for their doing. “Moral turpitude implies something immoral in itself regardless of the fact whether it is punishable by law. The doing of the act itself and not its prohibition by law fixes the moral turpitude.” Pippin v. State, 197 Ala. 613, 73 So. 340; Ex parte Marshall, 207 Ala. 566, 25 A.L.R. 338, 93 So. 471; Fort v. Brinkley, 87 Ark. 404, 112 S. W. 1084; Coykendall v. Skrmetta (C. C. A. 5th) 22 F. (2d) 120. Nevertheless the fact that the doing of the act is penalized and the character of the penalty imposed are circumstances to be considered in determining the question of its turpitude.

For more than forty years — since the birth of this state — the traffic in intoxicating liquor, its manufacture and sale for beverage purposes, has been recognized as evil, and as such outlawed. Section 217, Constitution of North Dakota. This section was a declaration of principles on the part of the people of this state. It established the policy of the people of this state with reference to the liquor traffic. It imposed upon the legislature a moral obligation to take appropriate action with respect thereto. State ex rel. Ohlquist v. Swan, 1 N. D. 5, 44 N. W. 492. Pursuant to this provision the first legislature of the state, and thereafter as occasion demanded succeeding legislatures, enacted legislation forbidding and penalizing the manufacture and sale of intoxicating liquor as a beverage. Subsequently the people of the United States by the adoption of the Eighteenth Amendment likewise recognized the traffic in intoxicating liquor as evil and the Congress of the United States forbade it and penalized the violation of the ban. “The adoption of the Eighteenth Amendment and the National Prohibition Act were brought about by a general public sentiment that the liquor traffic should be abolished and made an outlaw, and that the traffic itself was a moral evil . . . ” per Kenyon, Circuit Judge, in Bartos v. United States Dist. Ct. (C. C. A. 8th) 19 F. (2d) 722, 728. As was said in Kurtz v. Farrington, 104 Conn. 257, 48 A.L.R. 259, 132 Atl. 540:

“The Constitution of the United States is the supreme law of the land. Not alone jurists, but publicists the country over are in agreement that, as interpreted by our Supreme Court, it has been a mightier influence in maintaining our government, and in helping it to meet the problems it has been confronted with, than any other single influence. Our country and our Constitution are inseparable. The Constitution has held our past; it now holds our present; and, if we keep to its defined course, it will sustain our future. The National Prohibition Law and the state laws passed in aid of the enforcement of the 18th Amendment are vitally necessary to the life and strength of this Amendment. Without them it must fail in its purpose. The violation of these laws is a violation of the Constitution of the United States. If one provision can be violated with impunity, another soon will be. If one who gives aid to the enemy of his country iii time of Avar is guilty of moral turpitude, how may we distinguish the man who in time of peace, by his deliberate course, helps to destroy the Constitution. It is indeed true that many do not see or feel that the violation of the liquor law is undermining the most vital of all our governmental institutions, the Constitution of the United States. Opinions may differ as to the wisdom of the law, but there can be no such difference as to the duty of the citizen. Courts will not look at violations of that law with easjr disregard of the baseness of the act, the unchecked effect of which is fraught with so serious a public evil, and is so destructive of the people’s regard for the law of the land. Crimes of this character are not ordinary crimes. They are violations of those duties which every citizen owes to society of which he is a part and the country of which he is a part. Citizens who disregard those high obligations, and are convicted in the courts of their own country or state, are not on a par with loyal citizens. Their offenses involve moral turpitude.

And while there is some difference among the courts as to whether violations of the prohibition acts, state or national, involve moral turpitude, we think that the weight of authority, as well as the weight of reason favors the view that they do. The following cases and the citations contained therein and in the notes appended thereto, illustrate both views. Kurtz v. Farrington, 104 Conn. 257, 48 A.L.R. 259, 132 Atl. 540; State ex rel. Young v. Edmunson, 103 Or. 243, 204 Pac. 619; Rudolph v. United States, 55 App. D. C. 362, 40 A.L.R. 1042, 6 F. (2d) 487; Bartos v. United States Dist. Ct. (C. C. A. 8th) 19 F. (2d) 722, 728; Re Bartos (D. C.) 13 F. (2d) 138; Booker v. State, — Ala. App. —, 121 So. 3; Ex parte Marshall, 207 Ala. 566, 25 A.L.R. 338, 93 So. 471 (but see Baugh v. State, 215 Ala. 619, 112 So. 157); Fort v. Brinkley, 87 Ark. 404, 112 S. W. 1084; Edenfield v. State, 14 Ga. App. 401, 81 S. E. 253; Jennings v. State, 82 Tex. Crim. Rep. 504, 200 S. W. 169, (but see Green v. State, 107 Tex. Crim. Rep. 473, 300 S. W. 55); McGovern v. Hays, 75 Vt. 104, 53 Atl. 326; Coykendall v. Skrmetta (C. C. A. 5th) 22 F. (2d) 120. Accordingly we hold that a violation of the state prohibition law as of a second offense involves moral turpitude.

It is further urged that the legislature when enacting the fourth section of chapter 126, supra, must have contemplated that there were felonies made such by statute which did not otherwise involve moral turpitude; that the character of the act and not the penalty imposed for its commission should determine the question of moral turpitude; that unless this were the case the provisions of the fourth section would be meaningless and futile; that there were and are no offenses made felonies by the state statutes which do not involve moral turpitude, unless violations of the prohibitory act are such offenses; that the statute here in question being highly penal in its nature must be strictly construed, and, on this account, if violations of the prohibitory act are held to involve moral turpitude, then, owing to the uncertainty of the legislative intent as to the offenses to which the statute should apply it must be held ineffective and void.

Of course it is our duty in applying the statute to discover the legislative intent. But we are not subject to the common law rule which requires that penal statutes shall be strictly construed. This rule is abrogated by our statute. See § 9201, Comp. Laws 1913; State v. Fargo Bottling Works Co. 19 N. D. 396, 26 L.R.A.(N.S.) 872, 124 N. W. 387. In the last named case, speaking with reference to the construction of penal statutes, we said:

“In our construction of this statute in all its parts, we bear in mind that it is a penal statute; that nothing is to be regarded as included within its provisions that is not within its letter as well as its spirit; and that, if it contains a patent ambiguity and admits of two reasonable and contradictory constructions, that which operates in favor of a party accused under its provisions is to be preferred. Further than this, however, rules of strict construction, especially those of the common law have no application to the statutes of our state. Section 187, Laws 1909, amending as it does § 9366, Bev. Codes 1905, is part of our Penal Code and clearly within the provision that The rule of the common law that penal statutes are to be strictly construed has no application to this Code. All its provisions are to be construed according to the fair purport of their terms, with a view to effect its objects and promote justice.’ Bev. Codes 1905, § 8538, Comp. Laws 1913, § 9201. Penal statutes, therefore, ‘like all others, are to be fairly construed according to the legislative intent as expressed in the enactment, the court refusing on the one hand to extend the punishment to cases which are not clearly embraced in them, and on the other equally refusing by any mere Yerbal nicety, or forced consideration or equitable interpretation, to exonerate parties plainly within their scope.’ 2 Lewis’s, Sutherland, Stat. Constr. 2d ed. § 519. If the meaning of the statute or of some of its parts is simply obscure, the legislative intent in the passage of the act will be considered as a light to assist the-court in arriving with more accuracy at its meaning, and a construction which gives some meaning to the statute or an obscure part or clause thereof will be preferred to one which renders it entirely nugatory and meaningless. ‘In short,’ as well stated by Judge Story, .‘it appears to me that the proper course in all of these cases is to search out and follow the true intent of the Legislature, and to adopt that sense of the words which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the Legislature.’ United States v. Winn, (C. C.) 3 Sumn. 209, Fed. Cas. No. 16,740.”

Evidently the legislature when it enacted chapter 126, supra, intended that an offender whose confirmed criminal tendencies were established by his previous convictions of two or more felonies should receive a more severe punishment than one who was a first or second offender. People v. Bergman, 176 App. Div. 318, 162 N. Y. Supp. 443; People v. Caesar, 1 Park. Crim. Rep. 645. The legislature contemplated that this depravity might be established by proof of former convictions, either in this state or in any of the other states, but required, that such proof should be to the satisfaction of the court or jury beyond a reasonable do\ibt, even as proof of any other element essential to a finding of guilt. Though it made no distinction between convictions in North Dakota and convictions in any other 'state, it specified that these convictions must be for felonies involving moral turpitude. We must, of course, assume that when the legislature enacted this section it had in mind the definition of felony as contained in our statute. It must have known that the statute is exclusive and that there are no offenses either misdemeanors or felonies which are not defined and made such by the statute. See §§ 9194, et seq., Comp. Laws 1913; Reeves v. Russell, 28 N. D. 265, L.R.A.1915D, 1149, 148 N. W. 654. So the legislature must have contemplated that a felony is an offense which is or may be punishable by imprisonment in the state penitentiary, and if it is left to tbe discretion of tbe judge or jury to determine whether the penalty imposed shall be imprisonment in the state penitentiary, then the offense is to be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the penitentiary. See § 9197, Comp. Laws 1913. And when the legislature excepted from the operation of the act “offenses made felonies by statute not involving moral turpitude” it must have intended that the character of the offense and'not the penalty imposed for its commission should determine its turpitude. Otherwise the words “not involving moral turpitude” are wholly redundant and useless. Hence the legislature must have intended that the offenses for which the convictions were had must be measured by the standards of the state of North Dakota; that is, that such offenses must be felonies as defined by the statute, § 9197, supra, and involve moral turpitude as determined by the policy of the law of North Dakota. Again, considering the primary purpose of the statute to impose an increased penalty where the depravity of the defendant or his criminal tendency is evidenced by former convictions, it would seem that the legislature must have intended that the offenses for which prior convictions were had must be of the same quality — that is, he felonies involving moral turpitude — as the offense for which the increased penalty is imposed under the act. Surely the legislature did not intend that if a defendant were twice convicted of offenses made felony by statute but not involving moral turpitude, and twice sentenced to the penitentiary therefor and subsequently convicted of, say, grand larceny, an offense involving moral turpitude, the act should apply; but if he were twice convicted of grand larceny and subsequently convicted of some offense made felony by statute but not involving moral turpitude, the provisions of the act should not apply. In other words, the tests imposed by section four of the act must be applied alike to all convictions, both present and former, domestic and foreign. Viewed in this light it is clear that the words of section four of chapter 126, supra, can be given effect and there is no redundancy. And viewed in this light there is no indefiniteness or uncertainty as to the offenses to which the provisions of the statute shall apply.

Next, it is contended that though the statute may be applicable to some violations of the prohibition act as of, a second offense, it does not necessarily apply to all such violations. It is urged that a distinction is to be made between tbe confirmed bootlegger wbo deliberately and flagrantly violates tbe law for profit and tbe ignorant citizen wbo manufactures liquor for bis own private use without any intent to violate tbe law and.ignorant that be is doing so. Accordingly, appellant contends that tbe trial court erred in refusing to permit bim to show tbe circumstances with respect to tbe offense for wbicb sentence was being imposed; tbat'whether or not that particular offense or either of tbe offenses for wbicb prior convictions were bad involved moral turpitude, was a question of fact to be determined from all tbe circumstances.

We are unable to agree with tbe contentions thus urged. It is clear to us tbe legislature intended that in applying tbe act, offenses of wbicb tbe defendant bad theretofore been convicted should be considered as a class and did not contemplate that it should be left to tbe judgment of each judge or court to say from tbe facts in each particular case whether or not tbe offense thus under consideration was one wbicb involved moral turpitude. In other words, tbe legislature did not intend that there should be a retrial of tbe facts on wbicb any conviction, present or former, rested. It being shown that a judgment of conviction has been entered against tbe defendant, such judgment must be held to be final and conclusive as against bim. It may be that tbe laws enacted for tbe purpose of making effective tbe constitutional ban on tbe liqtror traffic are extreme in some instances and that if strictly enforced individuals wbo violate tbe law without intent to do so may be made to suffer its penalty. But we are not here concerned with such cases. We are dealing with tbe practical application of tbe legislative intent as expressed in tbe act under consideration “with a view to effect its objects and promote justice.” Tbe act applies to former convictions in other states as well as to those in North Dakota. Practically it would be impossible to pass upon tbe merits of cases arising in other jurisdictions. We therefore bold that there was no error on tbe part of tbe trial court in refusing to consider tbe offer of tbe appellant to show tbe circumstances with respect to tbe several offenses of wbicb be bad been convicted for tbe purpose of passing upon tbe question of their moral turpitude. See People v. De Beilis, 87 Misc. 459, 150 N. Y. Supp. 1064.

Lastly, tbe defendant insists that tbe case must be reversed and re manded for the reason that the trial court erroneously construed the statute as mandatory upon him in that it required him to impose the maximum penalty fixed by law.

There is merit to the defendant’s contention in this regard. Evidently the act here under consideration, chapter 126, Session Laws 1927, supra, was adapted from the New York statute, §§ 1941-1943, Penal Law, N. Y. (Consol. Laws, chap. 40), Gilbert’s Criminal Code, 1926, pp. 625, et seq. Under §§ 1941 and 1942 of the New York statute, the court must impose a more severe penalty where the conviction is for a second felony than might be imposed if the conviction were for a first offense, and if the conviction is for a fourth offense, then the court has no discretion but must impose a sentence of life imprisonment. People v. Raymond, 96 N. Y. 38, 4 Am. Crim. Rep. 124; People ex rel. Friedman v. Hayes, 172 App. Div. 442, 158 N. Y. Supp. 949. That is, these statutes fix a new minimum as well as a new maximum penalty, and to that extent restrict the exercise of discretion on the part of the court. Apparently, in the instant case, the trial court gave such a construction to the provisions of chapter 126, supra. This act, however, (§§ 1 and 2) simply increases the maximum penalty which may be imposed where the offender theretofore has been convicted of two or more felonies involving moral turpitude, leaving the minimum penalty unchanged, thereby enlarging the field in which the court may exercise this discretion. Thus § 1 provides: “. . . the maximum punishment or penalty of imprisonment for such offense shall be twice the maximum sentence now or hereafter prescribed by law for a first conviction of said offense.” And § 2 provides: “ . . . the maximum punishment or penalty of imprisonment for such offense shall be life imprisonment.”

It is clear that under these provisions the court imposing sentence may exercise his discretion as to the penalty to be imposed, within the limits of the law. Those limits are the minimum prescribed in cases of first offenses and a maximum of twice the maximum for a first offense where sentence is being imposed for a third conviction, and a maximum of life imprisonment where sentence 'is being imposed for a fourth conviction. Of course in order to properly exercise the wide discretion thus reposed in the judge under this statute he may, and should, make inquiry with respect to the facts, not only in regard to the offense for wbicb sentence is being imposed, but also with respect to the offenses for which, prior convictions were had. (In this connection see, also, § 10,944, Comp. Laws "U3.) But such inquiry is for the purpose of enabling him to exercise his discretion wisely and not to determine whether the provisions of the law are applicable to the particular case. In the instant case, the trial court did make such inquiry, but stated at the time of imposing the sentence that he had no discretion in the matter but was required under the statute to impose the maximum penalty prescribed. And he did impose such maximum penalty. We think, therefore, that the judgment and sentence must be vacated and set aside and the case remandéd to the district court in order that a sentence may be imposed for such term as the court shall, in his discretion, deem fit and proper, considering all the circumstances, taking into consideration, of course, the time which the defendant has already served.

The judgment and sentence are therefore vacated and set aside and the case is remanded to the district court for disposition in accordance with this opinion.

Burke, Oh. J., concurs.