Ex parte McInnis

• Decision Date: 06 February 1911
• Docket Number: 14969
• Citation: 54 So. 260,98 Miss. 773
• Court: Mississippi Supreme Court
• Parties: EX PARTE D. C. MCINNIS

54 So. 260

98 Miss. 773

EX PARTE D. C. MCINNIS

No. 14969

Supreme Court of Mississippi

February 6, 1911

APPEAL from the circuit court of Simpson county, HON.W. H. HUGHES Judge.

Petition for habeas corpus by D. C. McInnis. From a judgment denying same he appeals.

The facts are stated in the opinion of the court.

Affirmed.

May &amp Saunder, for appellant.

On this record we do not deem it necessary to enter upon an extended discussion of the facts since there is no dispute about the facts and to all intents and purposes the question is before the court as though a demurrer had been sustained to the petition. The petition was convicted in the circuit court of Simpson county for certain embezzlements committed by him during the year 1907 while sheriff and tax collector of that county, and sentenced to serve a term of one year's imprisonment and to pay the costs as provided by law at the time of the commission of the offense of which he was convicted. The petition shows that the term of imprisonment had been served by the petitioner and that he is now being deprived of his liberty in default of the payment of the costs amounting to about twelve hundred dollars, which costs he is unable to pay because of his poverty and which he is unable to work out because of his physical infirmities. The effect of this imprisonment for life.

On this state of facts we contend on behalf of the petitioner that his confinement violates sec. 28, article 3, of the Constitution of the state of Mississippi and article 8 of the amendments to the Constitution of the United States forbidding the infliction of cruel and unusual punishment and excessive fines; that he is denied the equal protection of the laws afforded to other convicts in violation of the Fourteenth Amendment of the Constitution of the United States.

Section 1141, Mississippi Code 1906, under which the petitioner was convicted, prescribes a maximum punishment for violation of its provisions, as follows: Imprisonment in the penitentiary not more than twenty years, or a fine not more than one thousand dollars, or imprisonment in the county jail not more than one year.

In support of the contention that the punishment now being inflicted on the petitioner is cruel and unusual and that the fine imposed upon him is excessive we cite with confidence the case of Paul A. Weems v. The United States, decided by the supreme court of the United States on May 2nd, 1910 reported in Advance Sheets June 1st, 1910, at page 544 to 568 inclusive. In that case the court held (see syllabus) that:

"Cruel and unusual punishment forbidden by the Philippine Bill of Rights as inflicted by the provisions of the Philippine Penal Code under which the falsification by a public official of a public and official document must be punished by fine and imprisonment at hard and painful labor for a period ranging from twelve years and a day to twenty years, the prisoner being subject as accessories to the main punishment to carrying during his imprisonment a chain at the ankles hanging from the wrist, to deprivation during the term of imprisonment of civil rights and to perpetual absolute disqualification to enjoy political rights, hold office, etc., and to surveillance of the authorities during life."

The court in discussing the question of cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous, torture and the like." McDonald v. Commonwealth, 173 Mass. 322, 73 Am. St. Rep. 293, 53 N.E. 874.

"The court, however, in that case conceded the possibility that punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment."

"The clause of the Constitution in the opinion of the learned commentators may be therefore progressive and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by humane justice."

Now if it be true that the punishment now being inflicted upon the petitioner amounts to imprisonment for life can it be said with any show of reason that such punishment is not "so disproportionate to the offense as to constitute a cruel and unusual punishment."

Prior to the enactment of the Laws of Misssissippi 1908, chap. 109, the legislature had wisely and humanely provided that no person should be held in custody for fines and imprisonment longer than two years. Section 870, Code Mississippi 1906, chapter 168, amendatory to said section 870, approved March 5th, 1908, contained the same provision. Chapter 109, approved March 20th, 1908, fifteen days after the approval of chap. 168 repealed the said sec. 870. Section 3 of said chapter 109 contains a humane provision for the discharge of infirm convicts, such as the petitioner. This court in the case of State v. Kirby, 51st Southern 811, held the said sec. 3 to be unconstitutional as an encroachment upon the pardoning power vested by the Constitution in the governor.

So we say the effect of the judgment is imprisonment for life for the petitioner. Again it may be argued that the mittimus under which he is being detained by the sheriff shows that he will be discharged at the expiration of ten years but this contention involves a fallacy for the very good reason that if the board of supervisors is without power to discharge an infirm convict all at one time they are equally without power to pardon him at the rate of so much per month, and furthermore if they had the power to do that to hold a prisoner for ten years for a cost bill is a fine so excessive as to shock the conscience and offend against every humane sentiment. For this same result would follow whether the convict should be a misdemeanant or a felon.

We deem it hardly necessary to call the court's attention to the fact that if the petitioner were a robust man, in the course of human events he could work out his discharge and regain his liberty, we roughly estimate, in ten years, provided he should not be sick and should lose no time. Since he is so unfortunate as to be physically infirm he must, in addition, lose that equal protection the law affords to robust convicts, and of course such an inhuman result was never contemplated nor intended by the lawmakers, but, notwithstanding no such cruel result and operation of the law could fairly be attributed to the law making body, that result and operation results from the repeal of sec. 870 of the Code of 1906.

We therefore respectfully submit that the petitioner is being denied the equal protection of the laws and is being visited with cruel and unusual punishment and an excessive fine has been imposed upon him.

Carl Fox, assistant attorney-general for appellee, filed an elaborate brief and cited the following authorities:

O'Connell v. Regina (1844), 11 Clark & Finneley 155, 406-8, Eng. Reports Reprint, 1156; Broome & Hadley's Commentaries, page 473-475; State v. Danforth, 3 Conn. 112, 116; State v. Driver, 78 N.C. 423; Robinson v. Miner et al., 68 Mich. 549; Cooley's Const. Lim., 7th Ed. 471; Lord Devonshire's case, 11st Trials, 1354; note to the case of Ex parte Bryant, 12 Am. St. Rep. 202; Dr. Groenvelt's case (1697), 1st Lord Raymond's 213, 91 English Reports Reprint, 1038; Rex v. Hord, Sayer, 176, 96 Eng. Rep. Repr. 843; Rex v. Layton, 1st Salkeld 353, 91 Eng. Rep Repr. 309; Regina v. Dunn, 12 Q. B. 1026 to 1041; Brock v. State, 22 Ga. 98, 101; Bell, 26 O. St. 195; Morgan v. State, 47 Ala. 34; Jackson v. Boyd, 53 Ia. 536; Com. v. Harris, 23 Pick. 280; Ex parte Boolig, 31 Ill. 89; Armstrong v. State, 83 Ala. 49; Gady v. State, 83 Ala. 51; State v. Peterson, 38 Minn. 143; Brownbridge v. People, 38 Mich. 751; Washbourn v. Belnap, 3 Conn. 502; Howard v. People, 3 Gibbs (Mich., 1854); Ex parte Peacock (Fla. 1889), 6 So. 473; Ex parte Bryant, 24 Fla. 278, 4 So. 854, 12 Am. St. Rep. 200; Southern Express Co. v. Walker, 92 Va. 59, 41 L. R. A. 436; Yell, 107 Mich. 228; Frese v. State, 23 Fla. 267; State v. Whittaker, 48 La. Ann. 527, 35 L. R. A. 561.

Argued orally by Geo. W. May, for appellant, and Carl Fox, assistant attorney-general, for appellee.

MAYES, C. J. SMITH, J.

OPINION

MAYES, C. J.

This is a proceeding by habeas corpus, instituted by D. C. McInnis, and by it he seeks to be released from imprisonment in the county jail of Simpson county. The record is substantially as follows, viz.:

In May 1908, Mr. McInnis was indicted in the above county on a charge of embezzlement. The indictment charged a violation of section 1141 of the Code of 1906. At the June term of the circuit court of Simpson county in 1909 Mr. McInnis was placed on trial under the indictment and convicted. On the 3d day of June, 1909, the court sentenced McInnis to the county jail for one year, and also required him to pay all cost of prosecution. It seems that the amount of the cost was about twelve hundred dollars. Mr. McInnis commenced to serve his sentence on the 3rd day of June, and remained in prison from that date until the time he applied for this writ of habeas corpus, on the 26th day of August, 1910, which was more than one year from the date of sentence. The proceedings were brought against the sheriff of the county having custody of petitioner. It may be here stated that section 1141 of the Code provides, as a penalty for its violation, that the person violating it may be given a twenty-year sentence in the penitentiary, or be fined in a sum not to exceed one thousand dollars, or imprisoned in the county jail for a year. It plainly appears that the sentence imposed on petitioner was within the limit allowed by the statute. It appears from the record that the reason the sheriff refuses to release petitioner is because he has not paid the cost of the...