Cave v. Haynes

• Decision Date: 19 June 1936
• Docket Number: 43409.
• Parties: CAVE et al. v. HAYNES, Warden of State Penitentiary, et al.
• Court: Iowa Supreme Court

268 N.W. 39

221 Iowa 1207

CAVE et al. v. HAYNES, Warden of State Penitentiary, et al.

No. 43409.

Supreme Court of Iowa.

June 19, 1936

Appeal from District Court, Lee County; John M. Rankin, Judge.

An action in mandamus to compel the warden of a penitentiary to change his record. The relief prayed for was granted and defendants appeal.

Reversed.

Edward L. O'Connor, Atty. Gen., and Lehan T. Ryan, Asst. Atty Gen., for appellants.

Shaw & Yoder, of Sigourney, for appellees.

ALBERT, Justice.

On the 7th of July 1934, the plaintiffs separately pleaded guilty to an indictment charging entering a savings bank with intent to hold up and rob, in violation of section 13002 of the 1931 Code of Iowa. On the same date each defendant pleaded guilty sentence was pronounced " that the defendants and each of them be imprisoned in the State Penitentiary at Fort Madison, Iowa, for a term of Thirty Years." They were transported to the penitentiary at Fort Madison, and entered on the books of that institution as sentenced " to life imprisonment." The purpose of this action is to command the change of this entry from " life imprisonment" to " a term of years not exceeding thirty."

There is much disputation in the briefs and arguments as to whether this form of action is proper, or whether the review should be by certiorari. We pass this question without expressing a view on it because of our conclusion in the case that whichever route is traveled, the plaintiffs are not entitled to any relief.

Code, § 13002 reads as follows: " If any person shall enter or attempt to enter the premises of a bank or trust company or banking association, with intent to hold up and rob any bank or trust company or any banking association, or any person or persons therein, or thought to be therein, of any money or currency or silver or gold or nickels or pennies or of anything of value belonging to said bank or trust company or banking association, or from any person or persons therein; or shall intimidate, injure, wound, or maim any person therein with intent to commit such holdup or ‘ stick-up’ or robbery, he shall, upon conviction thereof, be imprisoned in the penitentiary at hard labor for life, or for any term not less than ten years."

Section 13960 of the Code of 1931, reads as follows: " When any person over sixteen years of age is convicted of a felony, except treason or murder, the court imposing a sentence of confinement in the penitentiary, men's or women's reformatory shall not fix the limit or duration of the same, but the term of such imprisonment shall not exceed the maximum term provided by law for the crime of which the prisoner was convicted."

It will be noted from what has been heretofore pointed out that the court sentenced the defendants to be confined in the penitentiary for thirty years. It will also be noted that, under the last above section, commonly referred to as the " Indeterminate Sentence Law," the court is prohibited from fixing the limit or duration of the sentence in all cases except treason or murder.

The constitutionality of this Indeterminate Sentence Law has been sustained in State v. Loos, 145 Iowa 170, 123 N.W. 962; State v. Ferguson, 149 Iowa 476, 128 N.W. 840; Ware v. Sanders, 146 Iowa 233, 124 N.W. 1081; State v. Duff, 144 Iowa 142, 122 N.W. 829, 24 L.R.A.(N.S.) 625, 138 Am.St.Rep. 269; Adams v. Barr, 154 Iowa 83, 134 N.W. 564; McKinnon v. Sanders, 161 Iowa 555, 143 N.W. 407.

It is insisted by the plaintiffs that because of the wording of the statute (section 13002) in providing a maximum penalty of life and a minimum penalty of ten years, the Indeterminate Sentence Law is not applicable. With this we do not agree. Section 13960 provides but two exceptions, murder and treason. Later an additional exception was specially provided, excluding the crime of rape from the Indeterminate Sentence Law. We think the purpose and intention of the Legislature was exactly what the statute says, to wit, that the Indeterminate Sentence Law was to apply to all felonies except those especially excepted by the statute. It is true that this section is modified by section 13962 of the Code; but with this modification we are not interested in this case.

In the case of State v. Perkins, 143 Iowa 55, 120 N.W. 62, 64, 21 L.R.A.(N.S.) 931, 20 Ann.Cas. 1217, the charge was adultery. The sentence was " imprisonment at hard labor in the penitentiary at Fort Madison, Iowa, for one year." This was under a statute providing for a penalty of not more than three years, or a fine of not more than $300 and imprisonment in jail not more than one year. We held that this sentence was a plain disregard of the provisions of the Indeterminate Sentence Law, and concluded that: " The fixing of a shorter term by the court cannot in our judgment affect the power of the board of parole to act in his case if it shall so determine. So that in any view of the matter the appellant has not been prejudiced by the erroneous judgment of the district court."

In State v. Dillingham, 143 Iowa 282, 121 N.W. 1074, the sentence was " five years in the penitentiary at Fort Madison." We refused to reverse.

In State v. Duff, 144 Iowa 142, 122 N.W. 829, 24 L.R.A.(N.S.) 625, 138 Am.St.Rep. 269, the indictment was for aiding an escape from jail. The sentence was " to the state penitentiary for ten years," and it was approved. This was under a statute which provided for an alternate penalty of not exceeding ten years in the penitentiary or a fine and imprisonment in the county jail not exceeding one year.

In State v. Loos, 145 Iowa 170, 123 N.W. 962, the indictment was for perjury. The sentence under the Indeterminate Sentence Law was approved.

In State v. Rozeboom, 145 Iowa 620, 124 N.W. 783, 787, 29 L.R.A.(N.S.) 37, the defendant was convicted of larceny. The sentence was " the extreme penalty of the law." We said: " Under our present statute this objection is probably not one for the consideration of this court. It is to be presumed that the board of parole, in exercising the wide discretion given it in such matters, will take into consideration the nature of the offense of which conviction has been had, and all the reasons, if any, for mitigating the extreme penalty imposed, and make such order as shall be required by the real merits of the case."

In Ware v. Sanders, 146 Iowa 233, 124 N.W. 1081, 1086, the charge was false entry in the books, embezzlement, and fraudulent banking. A quite elaborate discussion is made in this case on the purpose of the Indeterminate Sentence Law (chapter 192, Acts of the Thirty-second General Assembly), and we said: " It is a matter of familiar recent history that the adoption of this new scheme of administering penal justice had been for years pressed upon the attention of the Legislature of the state as a very desirable reform. It was not intended so much as an amendment to the old system as the adoption of a new one, framed upon different plans and ideals. It was not intended to apply simply to one prison or to one class of offenders. No reason existed why the several hundred persons then in prison under the old law, and those who might yet be convicted thereunder, should be set apart as one class to whom the new law should have no manner of application, except the reason found in the constitutional restriction above referred to, which protected such persons from any increase in the punishment or penalty imposed upon them under the old law. The statute seems to have been carefully drawn with this thought in mind, and to have been made as broad, complete, and comprehensive as was practicable and avoid transgressing this provision of the fundamental law."

In this case the sentence was " confinement in the penitentiary at Fort Madison for a term of five years." The sentence was approved. The writ was, however, sustained because a duly executed parole was found to exist.

In State v. Davenport, 149 Iowa 294, 128 N.W. 351, the defendant was convicted of burglary with aggravation, and was sentenced to imprisonment for life. The statute (Code 1897, § 4788) provided a penalty of " imprisonment for life or any term of years." We approved the sentence. We there said: " He was but 24 years of age, and this circumstance may well be taken into account by the board of parole in dealing with him hereafter. The period of his incarceration will be measured largely by his future conduct. While the sentence was for a definite period contrary to the indeterminate sentence law (section 5718a13, Code Supp.1907), this will not interfere with the adjustment of punishment as prescribed therein. The case is not one for the interference by this court."

In State v. Haines, 152 Iowa 394, 132 N.W. 821, 823, the conviction was for larceny, and the sentence was for a term not exceeding five years. We there said: " If the court had been at liberty under the law to exercise a discretion in the imposition of a sentence, and in the exercise of this discretion had imposed a sentence for the full limit of imprisonment authorized by the statute for such an offense, we should have been inclined to reduce the term of imprisonment on this appeal. Under the indeterminate sentence law the lower court had no such discretion, and we have no authority to interfere."

In Adams v. Barr, 154 Iowa 83, 134 N.W. 564, 565, we said: " that in imposing judgment of imprisonment, in the penitentiary in cases of the kind therein described, the court ‘ shall not fix the limit or duration of the same.’ In other words, in such cases a judgment or sentence that the defendant ‘ be imprisoned in the penitentiary according to law’ is all that is required and whatever is added thereto is unauthorized and may be ignored as void or mere surplusage. No reference whatever need be or...