The provision in section 3959 of the Revised Statutes of
Missouri that prisoners convicted two or more times of committing
offenses punishable by imprisonment in the penitentiary shall be
punished with increased severity for the later offenses does not in
any way conflict with the provisions of the Fourteenth Amendment to
the Constitution of the United States.
A state may provide that persons who have been before convicted
of crime may suffer severer punishment for subsequent offenses than
for a first offense against the law, and that a different
punishment for the same offense may be inflicted under particular
circumstances, provided it is dealt out to all alike who are
similarly situated.
Whether an indictment in a state court is sufficient in its
description of the degree of the offense charged is a matter for
the state court to determine, and its decision in that respect
presents no federal question.
No question which could be regarded as a federal question having
been raised at his trial, the prisoner was not subjected to an
unconstitutional ruling in not being allowed to have his case heard
at large by seven judges, instead of by three.
Frank Moore was indicted in the St. Louis Criminal Court for
burglary in the first degree and larceny in a dwelling house on May
26, 1893. The indictment also charged that defendant
"on the eleventh day of January, in the year of our Lord one
thousand eight hundred and seventy-seven at the City of St. Louis
aforesaid, in the St. Louis Criminal Court, was duly convicted on
his own confession of the offense of grand larceny, and in
accordance with said conviction was duly sentenced by said court to
an imprisonment in the penitentiary for the term of three years,
and was duly imprisoned
Page 159 U. S. 674
in said penitentiary in accordance with said sentence, and that
after his discharge from the penitentiary upon compliance with the
sentence, he committed the said offenses of burglary and
larceny."
Being duly arraigned, he pleaded not guilty, but subsequently
withdrew his plea and filed a motion to quash the indictment for
duplicity and
"because section 3959, under which the said indictment purports
to charge the defendant with a former conviction, is
unconstitutional and illegal and void and in conflict with the
Constitution of the United States and the State of Missouri."
The motion being overruled, he was again arraigned, pleaded not
guilty, and was put upon his trial, which resulted in a verdict of
guilty of burglary in the second degree, his punishment being fixed
by the jury at imprisonment in the penitentiary for life. A motion
for a new trial was made for the following cause, among others,
"because the court erred in overruling defendant's motion to
quash the indictment for the reason that it violated both the state
and federal constitutions,"
and, that motion being overruled, Moore filed a motion in arrest
of judgment upon various grounds, and among them that burglary in
the second degree was not included in the offense of burglary in
the first degree, but was a separate and distinct offense; that the
statute upon which the indictment was founded was
"unconstitutional and void in that it violates the Fourteenth
Amendment of the federal Constitution, and violates the 'bill of
Rights' in the Constitution of Missouri in prescribing a second
punishment for the same offense and different punishment for
different persons for committing the same offense,"
that the indictment, in charging the former conviction, attacked
defendant's character when not in issue, and that the indictment
failed to inform the defendant of the accusation against him. The
motion in arrest was overruled and Moore sentenced to the
penitentiary for life in accordance with the verdict, whereupon he
appealed to the Supreme Court of Missouri, Division No. 2, by which
the judgment was affirmed. 121 Mo. 514. Moore afterwards moved for
a rehearing upon the ground, among others, that he
"was acquitted by the jury of all and every charge against him
in the
Page 159 U. S. 675
indictment, and yet stands sentenced for an offense not named in
the indictment nor included in any offense described therein, and
thus is deprived of his constitutional right of being prosecuted
under an indictment informing him of the nature and cause of the
accusation against him,"
and also moved that the motion and cause be transferred to the
court in banc. These motions were denied, and thereafter Moore
moved the Supreme Court sitting in banc to set aside the judgment
of Division No. 2, and to order that division to transfer the cause
to the court in banc for the reason that the cause involved a
federal question or questions raised by his motions to quash the
indictment, for a new trial, and in arrest of judgment. The supreme
court in banc denied this motion and also a second motion to the
same effect. A writ of error from this Court was subsequently
allowed.
MR. CHIEF JUSTICE FULLER, after stating the facts, delivered the
opinion of the Court.
Admitting that the first ten articles of amendment to the
Constitution of the United States were adopted as limitations on
federal power, it is argued for plaintiff in error that the
fundamental rights secured thereby are protected by the fourteenth
article of amendment from invasion by the states, in the
prohibition of the abridgment of the privileges and immunities of
citizens of the United States, of the deprivation of life, liberty,
or property without due process of law, and of the denial of the
equal protection of the laws, and it is contended that section 3959
of the Revised Statutes of Missouri of 1889 is in violation of that
amendment in that persons are thereby subjected to be twice put in
jeopardy for the same offense, and to cruel and unusual punishment,
and deprived of
Page 159 U. S. 676
the equal protection of the laws. That section, which is also to
be found in the Revised Statutes of Missouri of 1879 and the
General Statutes of Missouri of 1865, is as follows:
"SEC. 3959.
Second offense, how punished. -- If any
person convicted of any offense punishable by imprisonment in the
penitentiary, or of petit larceny, or of any attempt to commit an
offense which, if perpetrated, would be punishable by imprisonment
in the penitentiary shall be discharged either upon pardon or upon
compliance with the sentence and shall subsequently be convicted of
any offense committed after such pardon or discharge, he shall be
punished as follows: first, if such subsequent offense be such
that, upon a first conviction, the offender would be punishable by
imprisonment in the penitentiary for life, or for a term which,
under the provisions of this law, might extend to imprisonment in
the penitentiary for life, then such person shall be punished by
imprisonment for life; second, if such subsequent offense be such
that upon a first conviction the offender would be punishable by
imprisonment for a limited term of years, then such person shall be
punished by imprisonment in the penitentiary for the longest term
prescribed upon a conviction for such first offense; third, if such
subsequent conviction be for petit larceny or for an attempt to
commit an offense which, if perpetrated, would be punishable by
imprisonment in the penitentiary, the person convicted of such
subsequent offense shall be punished by imprisonment in the
penitentiary for a term not exceeding five years."
Similar provisions have been contained in state statutes for
many years, and they have been uniformly sustained by the courts.
In the opinion of the Supreme Court of Missouri, it is said:
"The increased severity of the punishment for the subsequent
offense is not a punishment for the same offense for the second
time, but a severer punishment for the subsequent offense, the law
which imposes the increased punishment being presumed to be known
by all persons, and to deter those so inclined from the further
commission of crime, and we are unable to see how the statute which
imposes such increased punishment violates the provisions of our
constitution
Page 159 U. S. 677
hereinbefore quoted. . . . The fact that the indictment charged
a former conviction of another and entirely different offense is
not in fact charging him with an offense with respect of the former
offense in the case in hand. The averments as to the former offense
go as to the punishment only."
And
People v. Stanley, 47 Cal. 133;
Rand v.
Commonwealth, 9 Gratt. 738;
Ross' Case, 2 Pick. 165;
Plumbly v. Commonwealth, 2 Met. (Mass.) 413;
Ingalls
v. State, 48 Wis. 647;
Maguire v. State, 47 Md. 485;
State v. Austin, 113 Mo. 538, and
Reg. v. Clark,
6 Cox Cr.Cases 210, are cited.
And see People v. Butler, 3
Cowen 347;
Johnson v. People, 55 N.Y. 512;
Kelly v.
People, 115 Ill. 583;
Blackburn v. State, 50 Ohio St.
428;
Sturtevant v. Commonwealth, 158 Mass. 598.
The reason for holding that the accused is not again punished
for the first offense is given in
Ross' Case by Chief
Justice Parker, that
"the punishment is for the last offense committed, and it is
rendered more severe in consequence of the situation into which the
party had previously brought himself,"
in
Plumbly v. Commonwealth, by Chief Justice Shaw, that
the statute
"imposes a higher punishment for the same offense upon one who
proves, by a second or third conviction, that the former punishment
has been inefficacious in doing the work of reform for which it was
designed,"
in
People v. Stanley that
"the punishment for the second is increased, because, by his
persistence in the perpetration of crime, he has evinced a
depravity which merits a greater punishment, and needs to be
restrained by severer penalties than if it were his first
offense,"
and in
Kelly v. People, "that it is just that an old
offender should be punished more severely for a second offense,
that repetition of the offense aggravates guilt." It is quite
impossible for us to conclude that the Supreme Court of Missouri
erred in holding that plaintiff in error was not twice put in
jeopardy for the same offense, or that the increase of his
punishment by reason of the commission of the first offense was not
cruel and unusual.
In re Kemmler, 136 U.
S. 436. Nor can we perceive that plaintiff in error was
denied the equal protection of the laws, for every other
Page 159 U. S. 678
person in like case with him, and convicted as he had been,
would be subjected to the like punishment.
The Fourteenth Amendment means
"that no person or class of persons shall be denied the same
protection of the laws which is enjoyed by other persons or other
classes in the same place and under like circumstances."
Missouri v. Lewis, 101 U. S. 22. The
general doctrine is that that amendment, in respect of the
administration of criminal justice, requires that no different
degree or higher punishment shall be imposed on one than is imposed
on all for like offenses, but it was not designed to interfere with
the power of the state to protect the lives, liberty, or property
of its citizens, nor with the exercise of that power in the
adjudication of the courts of the state in administering the
process provided by the law of the state.
In re Converse,
137 U. S. 624. And
the state may undoubtedly provide that persons who have been before
convicted of crime may suffer severer punishment for subsequent
offenses than for a first offense against the law, and that a
different punishment for the same offense may be inflicted under
particular circumstances, provided it is dealt out to all alike who
are similarly situated.
Pace v. Alabama, 106 U.
S. 583;
Leeper v. Texas, 139 U.
S. 462.
2. It is further urged by plaintiff in error that the crimes of
burglary in the first degree and burglary in the second degree were
so distinct and separate that plaintiff in error was not
sufficiently informed of the nature and cause of the accusation
against him by the indictment for burglary in the first degree, and
was in fact convicted under what was in effect no indictment at
all, and therefore denied due process of law. It is true that in
order to a conviction for a minor offense, it must be an ingredient
of the major and substantially included in the offense charged in
the indictment, but it is clearly a matter for the state courts to
determine whether in a given case an indictment is sufficient in
that regard.
Caldwell v. Texas, 137 U.
S. 692.
Under the statutes of Missouri, burglary in the first degree is
defined to be
"breaking into and entering the dwelling house of another, in
which there shall be at the time some
Page 159 U. S. 679
human being, with intent to commit some felony or any larceny
therein,"
in the several modes pointed out, and burglary in the second
degree consists in breaking into a dwelling house with intent to
commit a felony or any larceny, "but under such circumstances as
shall not constitute the offense of burglary in the first degree,"
or entrance into a dwelling house in such manner as not to
constitute burglary as hereinbefore specified, "with intent to
commit a felony or any larceny," or the commission by a person,
being in, of felony or larceny, and the breaking of any door or
otherwise, to get out, or the breaking of an inner door with intent
to commit felony or larceny when entrance is made through an open
outer door or window, or where a person is lawfully in the house,
etc.
The St. Louis Criminal Court and the supreme court of the state
appear to have had no difficulty in concluding upon the evidence
that it was for the jury to say whether plaintiff in error had
committed the crime of burglary in the second degree, and that he
could be lawfully convicted therefor under an indictment for the
greater offense. It may be admitted that these courts did not
suppose that they were passing on any federal question in this
regard, for no such question was specifically and seasonably
raised, but if it had been, we do not think that plaintiff in error
was denied due process of law in the view which was taken of his
case.
3. Finally, it is said that plaintiff in error was denied due
process of law because his case was not heard by the court in banc,
consisting of seven judges, but was left on the disposition of it
by Division No. 2, consisting of three judges. In an amendment to
the Constitution of Missouri adopted in 1890, the supreme court was
divided into two divisions -- Division No. 1, consisting of four
judges, and Division No. 2, of the remaining three, the latter
division having exclusive cognizance of all criminal cases. It was
also provided that when a federal question was involved, the cause,
on the application of the losing party, should be transferred to
the full bench for its decision.
Duncan v. Missouri,
152 U. S. 377.
In
Bennett v. Missouri Pacific Railway, 105 Mo. 642, it
was held that the court would not take jurisdiction on the
Page 159 U. S. 680
ground that a federal question was involved unless that question
was raised in and submitted to the trial court, and such court had
the opportunity to pass upon it, and that while it could not be
laid down by rule how every such question must be raised in the
trial court, it should at least be fairly and directly presented by
some of the methods recognized by the practice and procedure of the
court. In this instance, the supreme court in banc refused to
direct the case to be transferred, and we cannot say that it was
not justified in that refusal. The interjection into the motions to
quash and for a new trial of the assertion that section 3959 was in
conflict with the Constitution of the United States, and also in
the motion in arrest, was perhaps regarded as not sufficiently
definite to invoke a distinct ruling on the points afterwards
suggested; and, moreover, the full court may have been of the
opinion that there was no sufficient ground for the contention that
a violation of the federal Constitution had occurred to require it
to hear argument upon that subject. At all events, as we find that
there was no ground for questioning the judgment of the supreme
court because of such violation in the legislation on which that
judgment was based or in the conduct of the trial, we cannot hold
that the plaintiff in error was subjected to an unconstitutional
ruling in not being allowed to have his case heard at large by
seven judges instead of three.
Judgment affirmed.
