People v. Stanley

By the Court, Crockett, J.:

The defendant was indicted, jointly with three other persons, for the crime of robbery, and was tried separately. In the indictment it was alleged that he had previously been convicted of petit larceny. At the trial he was convicted of assault with intent to commit robbery, and the jury also found that he had been previously convicted of petit larceny as charged in the indictment. The Court thereupon sentenced him to confinement in the State Prison for fourteen years, which is the greatest punishment prescribed by the statute for an assault with an intent to commit robbery. When the prosecution offered in evidence the record of his prior conviction for petit larceny, it was objected to on the ground that Section 667 of the Penal Code, which inflicts the highest punishment prescribed by the statute, if the accused had before been convicted of petit larceny, is unconstitutional and void. The Court, however, admitted the evidence, and this ruling is assigned as error.

The clauses of the Constitution which are claimed to have been violated are those which provide, 1st, that “no person shall be subject to be twice put in jeopardy for the same offense;” and 2d, that “no cruel or unusual punishment shall be inflicted.” On the first point the argument is, that if the punishment of the second offense be increased because of a prior conviction for another offense, the accused will be twice punished for the first offense. The ready answer to the proposition is, that he is not again punished for the first offense, but 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.

In Virginia, they have a similar statute, and in Rand v. Commonwealth (9 Grattan, 743), Mr. Justice Daniel, in delivering the opinion of the Court, says: “No constitutional or other obstacle, however, seems to stand in the way of the Legislature’s passing an Act declaring that persons thereafter convicted of certain offenses committed after the passage of the Act may, if shown to have committed like offenses before, be subjected to greater punishment than that prescribed for those whose previous course in life does not indicate so great a degree of moral depravity. One convicted under such a statute cannot justly complain that his former transgressions have been brought up in judgment against him. He knew, or is presumed to have known, before the commission of the second offense, all the penalties denounced against it; and if in some sense the additional punishment may be said to be a consequence of the first offense (inasmuch as there could be no sentence for such punishment in the absence of proof of the first conviction) still it is not a necessary consequence, but one ■which could only arise on the conviction for the second offense, and one, therefore, which being fully apprised of in advance, the offender was left free to brave or avoid.”

In Massachusetts a similar statute exists, and in Ross Case (2 Pick, 170) Chief Justice Parker, in delivering the opinion of the Court, said: “The statute provides, that if any person having been before convicted of larceny, shall afterward commit another larceny, he shall be punished more severely than if he had not previously committed the like offense. The punishment is enhanced from the character of the culprit. So the same statute provides that if a person shall be convicted at the same term of three distinct offenses, he shall receive a more severe punishment. The same objection would apply in these cases, as much as in the one under consideration, that the culprit was punished because he had committed prior offenses, and that he was punished anew for those offenses. But in our view, 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.” The same views are expressed by Chief Justice Shaw in the later case of Plumby v. The Commonwealth, (2 Metc. 413), in which it is said: “The true view of it, we think, is that it 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.” They have similar statutes in New York and many other States, and we might multiply authorities on the point under discussion. But no case has been called to our attention, nor have we been able to find one in which it was held that statutes of tin's character are amenable to the objection now so earnestly urged by counsel. It may be, and doubtless is true, that under our statute cases may arise in wdiich the severity of the punishment would be out of all just proportion to the comparatively trivial nature of the offense. But that is a subject for the consideration of the Legislature and not of the courts.

It appeared in evidence at the trial that the defendant, and the three persons jointly indicted with him, were discovered by a policeman in the act of attempting to perpetrate the robbery; and that immediately after the attempt they proceeded to a saloon, where they were all soon after-wards arrested by the same and another policeman; that after leaving the saloon, and whilst being conducted to the jail, one of them (other than the defendant) broke away from the officer having him in charge, and attempted to escape by flight; but after a considerable chase, was recaptured. The evidence of the attempted escape was admitted against the objection of the defendant, and this ruling is assigned as error. In admitting the evidence, the Court below doubtless proceeded on the theory that the conspiracy to perpetrate the robbery having been proved, the flight of either one of the conspirators was admissible as a circumstance tending to prove the guilt of all. It is well settled that the flight of a person suspected of crime is a circumstance to be weighed by the jury, as tending, in some degree, to prove a consciousness of guilt, and is entitled to more or less weight, according to the circumstances of the particular case. Such evidence is received “not as a part of the res gestee of the criminal act itself, but as indicative of a guilty mind.” (Roscoe Cr. Ev. 18.) At most it is but a circumstance tending to establish a consciousness of guilt in the person fleeing; and it would be extending the principle to a great length to hold that thé flight of one person tends to establish the guilt of another person. We have been referred to no case which goes to that extent.

In the State v. Rand, 33 N. H. 216, the defendant was tried as an accessary, before the conviction of the principal, on the charge that the principal had broken into and robbed a bank, and the defendant was an accessary. The Court very properly held that for the purpose of proving the guilt of the principal, evidence of his concealment and flight, immediately after the perpetration of the crime, was admissible. But it was received solely to establish the guilt of the principal, and not of the accessary.

The rule is well settled that the acts of an accomplice are not evidence against the accused, unless they constitute a part of the res gestee, and occur during the pendency of the criminal enterprise, and are in furtherance of its objects. (People v. Moore, 45 Cal. 19; 1 Greenl. Ev. §111; 3 Phil. Ev. 396, note 234.)

The flight of the accomplice in this case occurred after the criminal enterprise had ended, and was not in furtherance of its object, nor a part of the res gestœ.

The evidence was therefore inadmissible. If all evidence was before us, it might be apparent that the admission of the testimony could not possibly have prejudiced the defendant. But, in the absence of the evidence, it is impossible for us to determine that it could not; and the rule is that every error in the admission of testimony is presumed to be injurious, unless the contrary clearly appears.

Judgment reversed, and cause remanded for a new trial.

Mr. Justice Niles did not express an opinion.