I concur fully in the opinion of Judge CRANE, except as to those parts which deal with the question of whether these defendants have waived their right to be tried by a jury, according to law, as to the truth of the information filed against them.
The Legislature has decreed that a person who has committed a felony within this State after having been *Page 467 three times convicted of other felonies shall be sentenced to imprisonment for the term of his natural life. It has determined, as it might do, that an offender who by repeated crimes has shown that he is unfit for liberty shall forever be deprived of his liberty. There may be cases where special circumstances are present which would lead a wise judge to believe that less severe punishment would better fit the crimes committed. A judge may fit the punishment to the crime only where the law leaves room for the exercise of discretion in a particular case. Justice in our courts may be meted out only according to law. When by act of Legislature the law provides that particular acts shall have definite consequences, there is no room for the exercise of discretion by the court or judge. When the law provides that after four convictions of crime, justice must be unbending and uniformly severe, the court may not temper justice with mercy, nor measure justice by other yardstick than that which the law provides.
The defendants have pleaded guilty to attempt to commit burglary in the third degree. The law makes such plea equivalent to conviction of that offense. In the same statute which provides that sentence of life imprisonment must follow, if these defendants have previously been three times convicted of a felony, the Legislature has scrupulously guarded against possibility of mistake in imposing such sentence, by provision that after information is filed against them accusing them of previous convictions the offenders shall have the right to trial by jury as to the truth of the allegations contained in the information. These defendants stand in the shadow of a prison which they may perhaps never leave. They have not had such trial, but by their own admission the allegations of the information are true. If the law permits the judge to pass sentence because of such admission; if these defendants have waived their right to be tried by jury in regard to matters which they admit to be true, *Page 468 then the justice meted out to them, though severe, is justice according to the law. If the law provides that sentence may not be imposed till the truth of the information is established in other manner, then the sentence is without warrant in law. Some judges may doubt the wisdom of the law when it provides that sentence of life imprisonment must be imposed upon all persons convicted of felony four times, regardless of the particular circumstances which may differentiate the degree of guilt. Some judges may doubt the wisdom of the law when it provides that such sentence may be imposed only when the previous convictions have been established under safeguards which to them seem unnecessary. In spite of such doubts, all judges may exercise only those powers which the law gives them. Provision which is made for the protection of the individual that sentence may be imposed only after truth of the allegations of the information has been established under statutory safeguards, is no less binding upon all judges than provision made for the protection of society that when sentence is imposed it shall not vary according to the varying circumstances of each case.
The provisions of the statute as to when sentence may be pronounced are as mandatory as the provisions which fix the sentence. After information has been filed the court must bring the offender before it and "shall inform him of the allegationscontained in such information and of his right to be tried as tothe truth thereof according to law, and shall require such offender to say whether he is the same person as charged in such information or not. If he says he is not the same person or refuses to answer, or remains silent, his plea, or the fact of his silence, shall be entered of record and a jury shall be empanelled to inquire whether the offender is the same person mentioned in the several records as set forth in such information. If the jury finds that he is the same person or ifhe acknowledges or confesses in open court, after being dulycautioned as to his *Page 469 rights, * * * the court shall sentence him to the punishment prescribed in said sections nineteen hundred and forty-one and nineteen hundred and forty-two." (Italics are mine.) Not until the court has informed the offender of his right to be tried as to the truth of the allegations contained in the information, may the offender be questioned; and as prerequisite to sentence there must be finding of the jury or acknowledgment or confession in open court after the offender has been duly cautioned as to his rights.
The record of all the proceedings on sentence duly certified according to law are before us. They show that the defendants were questioned as to previous convictions and admitted them. They do not show that the accused were informed as to their rights. Sentence was imposed upon their acknowledgment or confession — though such acknowledgment or confession was not made after the caution which the statute in unmistakable language requires, before the court may make it the basis for sentence.
It is said that these defendants have waived the requirement that they be informed of their rights and cautioned, because their counsel did not object on this ground. I will assume that even this provision, intended to safeguard the rights of the offender, may be waived. The law should not be so construed as to require a useless formula. If the offender is shown to have actual knowledge of his rights, information and caution that he may avail himself of them might be regarded as a vain and empty thing. I cannot see how the requirement that he be informed of his rights can be waived by any person unless he knew his rights even without such information. That the offender did know his rights may certainly not be presumed as a basis for waiver of express requirement that he be informed of his rights. That requirement is inserted for the very purpose of protecting a person who may possibly be ignorant of his rights. It negatives *Page 470 any presumption, if such presumption there be, that the offender knows the law. Silence can form basis for waiver only if the offender remains silent when he has knowledge that he may speak. The requirement that an offender be informed and cautioned as to his rights to a trial by jury is the legislative determination that failure to object to sentence without information given by the court as to his rights may not be accepted as a waiver of such rights, and renders admission of the truth of an information made without caution insufficient basis for sentence. Doubtless counsel for the defendants did know of the rights of the defendants. He chose not to insist upon them. We might perhaps speculate why he made that choice. An attorney has authority to represent the accused in most respects, but I can find neither sound reason nor authority for a holding that failure by counsel to raise appropriate objection can be held to be a waiver in behalf of an offender of an express provision that sentence of life imprisonment may be imposed upon acknowledgment by the offender of the truth of the information filed, only if such acknowledgment is made by the offender "in open court after being cautioned as to his rights." Requirement that information and caution as to his rights be given to the offender before acknowledgment of guilt may be accepted as proof, is inserted not once but twice in the statute. If the Legislature had intended that it should apply only when an offender is not represented by counsel, the Legislature could have so stated.
It may be argued that since the defendants acknowledge truth of the information, trial by jury of its truth would be a mere formality. That is an argument that might perhaps have appealed to the Legislature; it may not be considered by the court when the Legislature has said acknowledgment or confession may be acted on by the court only when made after caution. Judges may assume that these defendants have been four times convicted *Page 471 of felony when such convictions are established by the records and the acknowledgment of the offender. They may not base sentence upon that assumption when the Legislature forbids. Determination of the truth of the information is in all cases left to the jury, unless acknowledgment or confession is made in open court after caution.
The ideal of justice is that the guilty shall never escape punishment and the innocent shall never be accused falsely or convicted mistakenly. In practice, justice under our law and procedure doubtless falls far short of this ideal, and the guilty at times escape because of rules intended for the protection of the innocent. The courts have doubtless often magnified technical rules of procedure into guarantees of rights assumed to be fundamental, and have created rules which hamper the administration of justice by false assumption that such rules are necessary for the protection of the rights of the accused. Substance has been obscured in a mist of shadowy and deceptive analogy; technicality has pushed aside reason. Courts and Legislature within the respective spheres of their authority are considering in the light of present-day conditions and past experience by what rules we may approach more closely to our ideal of justice. Balance must be found between solicitude lest the accused should be wrongfully punished and insistence that the guilty should not escape. Neither consideration may be ignored. In the case before us the Legislature has acted. It has given a mandate to the courts that they must in certain cases impose sentence of life imprisonment; but out of solicitude for the accused it has provided that such sentence may be imposed only when truth of the information is established in a certain way. Truth otherwise established gives the court no power to impose the sentence. The courts may not create new technicality to destroy rights guaranteed by law, any more than they may create technicalities to *Page 472 hamper the administration of the law. Justice is done according to law by sentence that the doors of a prison shall forever close upon an accused only when guilt has been established according to law. That has not been done here.
The judgment should be reversed and the case remitted to the Court of General Sessions for resentence after proceeding upon the information in accordance with law.
CARDOZO, Ch. J., POUND, ANDREWS and KELLOGG, JJ., concur; LEHMAN, J., dissents in opinion.
Judgment affirmed.