WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
MATTHEW D. HARTIGAN, Judge, presiding.
MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Robert Lamphear and Roy Jurgensen (herein called defendants) were indicted in the criminal court of Cook County for the crime of robbery while armed with a dangerous weapon. The second count of the indictment contained the additional charge that defendant Lamphear had been indicted and convicted in 1948 for burglary and sentenced to the penitentiary for a term of not less than two and not more than eight years.
After a jury trial, a verdict was returned finding the defendants guilty in the manner and form charged in the indictment. There was a specific finding of guilt in the case of Lamphear as to the so-called habitual count. Jurgensen was sentenced to the penitentiary for a term of not less than fifteen years, and Lamphear was sentenced to life imprisonment.
In asking this court to reverse the convictions, counsel for the defendants contends: (1) The trial court lacked jurisdiction to try defendant Lamphear as an habitual criminal. (2) The jury was improperly and inaccurately instructed. (3) The evidence is insufficient to support the convictions.
First, it is contended on behalf of defendant Lamphear that the court lacked jurisdiction to try him as an habitual criminal pursuant to section 602 of the Criminal Code (Ill. Rev. Stat. 1953, chap. 38, par. 602.) To sustain this position, it is not argued that the statute is unconstitutional but that the State here did not properly proceed thereunder.
Said statute provides as follows: "Whenever any person who has been convicted of burglary, grand larceny, horse stealing, larceny of a motor vehicle, larceny from the person, rape, robbery, sale of narcotic drugs, forgery, arson, counterfeiting, kidnapping, confidence game or extortion by threats when the punishment was imprisonment in the penitentiary, shall thereafter be convicted of any of such crimes, committed after the first conviction, the punishment shall be imprisonment in the penitentiary for the full term provided by law for such crimes at the time of the last conviction therefore; and whenever any such person, having been so convicted the second time, as above provided, shall be again convicted of any of said crimes, committed after said second conviction, the punishment shall be imprisonment in the penitentiary for a period of not less than fifteen (15) years; provided that such former conviction, or convictions, and judgment or judgments shall be set forth in apt words in the indictment."
As noted above, the indictment in this case contained a count specifically charging the defendant Lamphear with having previously been convicted of burglary, one of the crimes enumerated in the statute; and the fact of such prior conviction was established by stipulation.
There clearly was a compliance with the statute, the last part of which states that such former conviction, or convictions, shall be set forth in apt words in the indictment.
Apparently counsel for the defendants believes the statute requires the issuance of two indictments, one charging armed robbery and the other charging the defendant with being an habitual criminal. This contention must rest upon the premise that the so-called Habitual Criminal Act creates a new crime. Such is not the case. Rather, the statute fixes a mandatory punishment for the subsequent crimes of which the defendant may be found guilty. Moreover, in directing that the former conviction be set forth in apt words in the indictment, the legislature showed it intended the fact of the prior conviction to be alleged in the indictment for which it is sought to administer the enhanced punishment.
We conclude that the sentence, as well as the procedure adopted, was in accord with the requirements of section 602; therefore, we find no merit in the contention that the criminal court lacked jurisdiction of this aspect of the case.
In People v. Manning, 397 Ill. 358, this court did express misgiving as to the procedure established in section 602, stating at page 361: "It is conceivable that the introduction of such fact [the prior conviction] might influence a jury as to the character of the defendant and cause it to conclude that if he had been formerly convicted of a felony, there was a strong probability that he was guilty of the second offense. The requirements of the law as to the degree and character of proof required to establish the principal offense are not changed and the fact that evidence of the former conviction might create an adverse impression with the jury is not, in view of the requirements of the act, a denial of due process of law." It is reasonably apparent that the evidence of the prior conviction, properly related only to the matter of punishment, might affect the jury's determination of guilt or innocence.
Likewise, other features of the statute are subject to reasonable criticism. The provision that on the subsequent conviction the maximum penalty be imposed, does not permit any flexibility in adjusting the punishment to the particular violation or allow for any mitigation, however much justified in an individual case. In addition, the maximum penalty may be unduly severe, especially where a life sentence is mandatory, as in the instant case.
In all of these respects our statute follows the form of the earlier habitual criminal acts. Dissatisfaction with their operation has resulted in widespread legislative modification. (See U. Chi. Law Revision Series, No. 1, p. 16ff.) The constitutionality of our statute has, however, been sustained. (People v. Lawrence, 390 Ill. 499; People v. Manning, 397 Ill. 358; People v. Kirkrand, 397 Ill. 588.) ...