Commonwealth v. McKenty

Decision Date09 December 1912
Docket Number179
Citation52 Pa.Super. 332
PartiesCommonwealth ex rel. v. McKenty, Appellant
CourtPennsylvania Superior Court

Argued October 28, 1912 [Syllabus Matter] [Syllabus Matter]

Appeals by relator and defendant, and 220, from order of Q. S. Philadelphia Co.-1909, No. 385, dismissing petition for habeas corpus in case of Commonwealth ex rel. Harry Bates v. Robert J. McKenty, Warden of the Eastern Penitentiary.

Petition for writ of habeas corpus.

The facts are stated in the opinion of the Superior Court.

Error assigned among others in both appeals was order of the court.

Joseph H. Taulane, assistant district attorney, with him Samuel P. Rotan, district attorney, and John C. Bell, attorney general, for Robert J. McKenty. -- Where certain independent and separate provisions of an act are not embraced within its title, it is well settled that those provisions which are separate and independent and within the title are not affected: Dewhurst v. Allegheny, 95 Pa. 437; Allegheny County Home, 77 Pa. 77; Dorsey's App., 72 Pa. 192; Lea v. Bumm, 83 Pa. 237; Wynkoop v. Cooch, 89 Pa. 450; Bennett v. Maloney, 4 Kulp, 537; La Plume Boro. v. Gardner, 148 Pa. 192.

While it is true that heretofore the legislature has conferred upon the judiciary such discretionary power in imposing sentence, there is nothing in the constitution vesting them with this power or that in any way prevents the legislature from depriving them of it: In re Marlow, 68 A. 171; Miller v. State, 149 Ind. 607 (49 N.E. 894); People v. Joyce, 246 Ill. 124 (92 N.E. 607); Wilson v. Com., 132 S.W. 557; State v. Farrell, 123 N.W. 1018; Com. v. Brown, 167 Mass. 144 (45 N.E. 1); Murphy v. Com., 172 Mass. 264 (52 N.E. 505); State v. Duff, 122 N.W. 829.

Taking the title as a whole, it is respectively submitted that it is amply sufficient and comprehensive to sustain the portions of the sixth section of the act in question: Allegheny County Home, 77 Pa. 77; Com. v. Moir, 199 Pa. 534; Russ v. Com., 210 Pa. 544; Sharpless v. Phila., 21 Pa. 147; Sugar Notch Boro., 192 Pa. 349; Phoenixville Road, 109 Pa. 44; Millvale Boro. v. Ry. Co., 131 Pa. 1; Com. v. Gilligan, 195 Pa. 504.

The most recent cases involving the sufficiency of the title are as follows: Com. v. Arow, 32 Pa.Super. 1; Com. v. Ayers, 17 Pa.Super. 352; Com. v. Clymer, 217 Pa. 302; Com. v. Fisher, 213 Pa. 48; New Brighton Boro. v. Biddell, 201 Pa. 96; Weiss v. Swift & Co., 36 Pa.Super. 376.

Error in sentence cannot be corrected on writ of habeas corpus: Ex parte Lange, 85 U.S. 163; Ex parte Parks, 93 U.S. 18; Sennott's Case, 146 Mass. 489 (16 N.E. 448); Stalker's Petition, 167 Mass. 11; Seller's Case, 186 Mass. 301 (71 N.E. 542); Ex parte Max, 44 Cal. 579; Ex parte Simmons, 62 Ala. 416; Com. v. Keeper of Jail, 26 Pa. 279; Com. v. McCabe, 22 Pa. 450; Beale v. Com., 25 Pa. 11.

The relator was not entitled to his discharge at the expiration of his minimum sentence. The court overlooked, however, that the real sentence of an indeterminate sentence is the maximum sentence, and it has been so held wherever the question has arisen. See Com. v. Brown, 167 Mass. 144 (45 N.E. 1); People v. Joyce, 246 Ill. 124 (92 N.E. 607).

Judicial discretion is not transferred to an administrative board: Miller v. State, 149 Ind. 607 (49 N.E. 894); People v. Joyce, 246 Ill. 124 (92 N.E. 607); State v. Duff, 122 N.W. 829; In re Marlow, 68 A. 171; Wilson v. Com., 132 S.W. 557.

The pardoning power of the governor is not restricted.

The sixth section of the act of May 10, 1909, does not conflict with sec. 6 of art. III of the constitution: Emsworth Boro., 5 Pa.Super. 29; Gallagher v. MacLean, 6 Pa. Dist. 315; Searight's Estate, 163 Pa. 210.

Edwin M. Abbott, with him John R. K. Scott, for relator. -- The title is defective in that (a) it contains more than one subject, and (b) the subject is not clearly expressed: Com. v. Aul, 18 Pa. Dist. 1040; Com. v. Darmska, 35 Pa.Super. 580; Phoenixville Road, 109 Pa. 44; Pierie v. Philadelphia, 139 Pa. 573; Stegmaier v. Jones, 203 Pa. 47; Dailey v. Potter County, 203 Pa. 593; Bennett v. Sullivan County, 29 Pa.Super. 120.

In the present act no notice is contained in the title of the repeal of the commutation law; of the increase in punishment for certain crimes; of the creation of a new crime known as a third offense, and of the repeal or amendment of pre-existing acts. The act of 1909 at least creates a minimum sentence for the crimes enumerated in the act of 1860, and in this particular, if in none other, clearly violates the constitutional requirement: Barrett's Appeal, 116 Pa. 486; Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627; Lloyd v. Smith, 176 Pa. 213; Oil City and Petroleum Bridge, 9 Pa. Dist. 110.

That the relator had served his minimum sentence is not denied. Therefore, the whole subject can be compared to the similar condition which has recently been adjudicated in Michigan: In re Forscutt, 167 Mich. 438.

The act creates a new crime without due notice. It is special legislation: Smith v. Com., 14 S. & R. 69; Com. v. Morrow, 9 Phila. 583; Rauch v. Com., 78 Pa. 490; Conway v. Com., 4 Walker, 106; Kane v. Com., 109 Pa. 541; Phila. v. Market Co., 161 Pa. 522.

Judicial authority and discretion is transferred to a nonjudicial board: Matter of American Banking & Trust Co., 4 Pa. Dist. 757; Com. v. Halloway, 42 Pa. 446; De Chastellux v. Fairchild, 15 Pa. 18; Pitts. & Steubenville R. R. Co. v. Gazzam, 32 Pa. 340; Richards v. Rote, 68 Pa. 248.

The pardoning power of the governor and board of pardons is restricted. The act conflicts with art. III, sec. 6, of the constitution. The constitutionality of a statute may be tested by habeas corpus proceedings to release from custody one who has been imprisoned under it: Ex parte Hollman, 79 S.C. 9 (60 S.E. 19); Ex parte Siebold, 100 U.S. 371; 21 Cyc. 302; 15 Am. & Eng. Ency. (2d ed.), 204; Church on Habeas Corpus (2d ed.), 383; Com. v. Huntley, 156 Mass. 236 (30 N.E. 1127); People v. Durston, 119 N.Y. 569 (24 N.E. 6); Ossie v. State, 147 Ala. 152 (41 So. 945).

A party is entitled to a habeas corpus not merely where the court is without jurisdiction of the cause, but where it has no constitutional authority or power to condemn the prisoner: In re Neilsen, 131 U.S. 176 (9 S.Ct. 672); In re Terry, 128 U.S. 289 (9 S.Ct. 77); In re Reed, 100 U.S. 13; In re Yarbrough, 110 U.S. 651 (4 S.Ct. 152); In re Bonner, 151 U.S. 242 (14 S.Ct. 323); In re Fong Yim, 134 F. 938; Crooms v. Schad, 51 Fla. 168 (40 So. 497); Alvarez v. State, 50 Fla. 24 (39 So. 481); In re Harrison, 212 Mo. 88 (110 S.W. 709).

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.



Henry Bates, the relator, was found guilty of burglary, and thereupon was sentenced to pay a fine of $ 500 and to undergo imprisonment in the eastern penitentiary for a term of not less than two and one-half years and not more than ten years. Shortly after the expiration of the minimum term of imprisonment a writ of habeas corpus was awarded by the quarter sessions upon his petition, in which he alleged that he was entitled to discharge on the ground that the Act of May 10, 1909, P. L. 495, under which the sentence was imposed, was unconstitutional. After hearing, the court held that the sixth section was unconstitutional because the title of the act was defective, and therefore no lawful sentence had been imposed; but also held that (we quote the words of the opinion) " there is no reason why he may not now be sentenced under the terms of the act of 1860. Justice requires that in imposing such sentence the imprisonment he has already suffered shall be taken into account; but requires nothing more." Accordingly, the court dismissed the petition for habeas corpus and remanded the relator for sentence under the act of 1860. From this order separate appeals were taken by the relator and the respondent, which, having been argued together, are now before us for disposition.

Section 6 of the act of 1909 reads as follows: " Whenever any person convicted in any court of this commonwealth, of any crime, shall be sentenced to imprisonment in either the Eastern or Western Penitentiary, the court, instead of pronouncing upon such convict a definite or fixed term of imprisonment, shall pronounce upon such convict a sentence of imprisonment for an indefinite term, stating in such sentence the minimum and maximum limits thereof; fixing as the minimum time of such imprisonment the term now or hereafter prescribed as the minimum imprisonment for the punishment of such offense; but if there be no minimum time so prescribed, the court shall determine the same, but it shall not exceed one-quarter of the maximum time, and the maximum limits shall be the maximum time now or hereafter prescribed as a penalty for such offense: (Provided, however, that when a person shall have twice before been convicted, sentenced and imprisoned in a penitentiary for a term of not less than one year, for any crime committed in this state or elsewhere within the limits of the United States, the court shall sentence said person to a maximum of thirty years). And provided further, that no person sentenced for an indeterminate term shall be entitled to any benefits under the act entitled 'An Act providing for the commutation of sentence for good behavior of convicts in prisons, penitentiaries, workhouses and county jails in this state, and regulations governing the same,' approved May 11, 1901, P. L. 166."

1. It is argued by relator's counsel that this entire section is unconstitutional because (a) it creates a new crime without notice in the title, (b) it is special legislation. This argument is based on that portion of sec. 6 which for convenient designation we have inclosed in parenthesis. But it...

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