Ex parte Shepley

• Citation: 202 P.2d 882,66 Nev. 33
• Decision Date: 10 February 1949
• Docket Number: 3544.
• Parties: Ex parte SHEPLEY.
• Court: Supreme Court of Nevada

202 P.2d 882

66 Nev. 33

Ex parte SHEPLEY.

No. 3544.

Supreme Court of Nevada

February 10, 1949

Original proceeding in the matter of the application of Kenneth Shepley for a writ of habeas corpus.

Proceeding dismissed.

Carville & Carville, of Reno, for petitioner.

Alan Bible, Atty. Gen. and Geo. P. Annand and Homer Mooney, Deputy Attys. Gen., for respondent.

HORSEY Chief Justice.

On June 17, 1948, Kenneth Shepley, then, and now, serving a sentence to life imprisonment in the Nevada State Prison, caused to be filed in this court a petition for a writ of habeas corpus. Such petition was thereupon presented to Chas. Lee Horsey one of the Justices of this court, who, on said 17th day of June, 1948, issued such writ, commanding the Honorable Richard Sheehy, the warden of said state prison, that he have the body of said Kenneth Shepley, by him imprisoned and detained, before this court, on the 28th day of September, 1948, together with the time and cause of his detention. The time of hearing was postponed, upon stipulation of respective counsel, until the 9th day of December, 1948, and on the 6th day of December, 1948, Warden Sheehy caused to be filed his return, in writing, upon the writ, and produced in this court the body of petitioner pursuant thereto, together with the original writ, and offered to produce, upon demand, any and all originals of papers referred to in his return. The matter was briefed and extensively argued by respective counsel, on said 9th day of December, 1948, and thereupon submitted to this court for its decision.

The petition and attached exhibits disclose that the petitioner in the Ninth Judicial District Court, in and for the County of White Pine, on the 13th day of December, 1941, upon his trial for the crime of murder, had been, by the verdict of the jury duly impaneled in such case, found guilty of murder in the first degree, and that, on the 17th day of December 1941, he was, by said court, duly adjudged guilty of the crime of murder in the first degree, and sentenced, for such crime, to be punished by imprisonment in the State Prison of the State of Nevada for 'the rest of his natural life'. On the same date a commitment was duly issued by said Ninth Judicial District Court to the warden of the Nevada State Prison, commanding him to safely keep and imprison the said Kenneth Shepley in the State Prison of the State of Nevada for 'the rest of his natural life'.

The record further discloses that subsequent to his conviction, by the verdict of the jury on the said 13th day of December, 1941, of the crime of murder of the first degree, and prior to the judgment and sentence therefor, which was pronounced on the 17th day of December, 1941, as aforesaid, the petitioner had been, in said Ninth Judicial District Court, in and for the County of White Pine, informed against, by the district attorney of said county, charging him with the crime of grand larceny, that on the 15th day of December, 1941, he had pleaded guilty thereto, and that on the 17th day of December, 1941, he was adjudged guilty of said crime of grand larceny, 'and that he be punished by imprisonment in the State Prison of the State of Nevada for the term of not less than two years, nor more than fourteen years, the imprisonment thereunder to commence at the expiration of the sentence of life imprisonment upon (sic) which has just previously been imposed'.

On the same date, December 17, 1941, a commitment was issued by said district court, commanding the warden or officers in charge of the state prison to receive and safely keep and imprison the said Kenneth Shepley in the said State Prison of the State of Nevada 'for the term of not less than two years nor more than fourteen years, said sentence to follow and to commence at the expiration of the sentence of life imprisonment previously imposed'.

In due time, and on or about December 17, 1941, the above mentioned commitments were each delivered to, and received by, the said warden, and simultaneously therewith the said warden, pursuant thereto, received from the sheriff of said White Pine County the custody of the petitioner, and had ever since held him in custody.

The fourth and fifth paragraphs of the warden's return are as follows:

'4. That the undersigned now holds said petitioner pursuant to and on the authority of the commitment and judgment in said murder case first above mentioned and said judgment is now final and no appeal therefrom has been taken.

'5. That petitioner (sic) now has no authority and does not claim to have any authority to hold or imprison petitioner on the grand larceny judgment and commitment unless or until the said sentence for murder has been fully satisfied either by pardon if any or by lapse of time after commutation of sentence if any or by reason of some judgment of Court requiring his obedience. That the undersigned does not intend to hold or imprison the petitioner for the crime of grand larceny except at the time and period following and commencing at the expiration of the sentence of life imprisonment previously imposed as aforesaid unless said sentence for grand larceny shall be set aside or modified by some pardon, commutation or judgment of Court requiring his obedience. That said judgment of conviction of grand larceny is now final and no appeal has been taken therefrom.'

The grounds upon which petitioner seeks relief by habeas corpus are, in substance, as follows:

That the petitioner is unlawfully detained and restrained of his liberty upon the said commitment for the offense of grand larceny; that his commitment and the sentence and judgment for grand larceny are illegal and void; that the illegality consists in this, that prior to the judgment and commitment of petitioner for grand larceny, judgment was passed upon petitioner by said Ninth Judicial District Court, in and for the County of White Pine, and he was, by such court, ordered committed to the warden of the Nevada State Prison, for the crime of murder, for 'the rest of his natural life', and that his commitment for grand larceny, and the judgment and sentence upon which same was predicated, imposing a sentence upon petitioner, for said offense, of not less than two nor more than fourteen years, to follow and commence at the expiration of the term of life imprisonment previously imposed by the court for the crime of murder, was excessive and unlawful; that, upon imposing the sentence of imprisonment for 'the rest of his natural life', for said crime of murder in the first degree, the district court lost jurisdiction to impose any additional term of imprisonment, and that such judgment and sentence and commitment for grand larceny, providing for the detention of the petitioner, as aforesaid for the term of not less than two nor more than fourteen years, superimposed upon the judgment, sentence and commitment requiring him to suffer imprisonment for the crime of murder in the first degree, for 'the rest of his natural life', was in violation of Section 6, Article I of the Constitution of the State of Nevada, which prohibits cruel or unusual punishments. Petitioner's attorneys have insisted, in petitioner's brief, that such punishment is at least 'unusual', and have cited authorities. From the arguments of the attorneys for petitioner, upon the hearing and as presented in petitioner's brief, it appears that the principal reason for petitioner seeking relief by habeas corpus from the sentence for grand larceny, at a time when his imprisonment for that crime had not commenced, and when he was, and is, in the midst of serving his sentence of life imprisonment for the crime of murder, is because, under the rules of the Board of Pardons and Parole Commissioners, one serving a sentence to life imprisonment may, after serving seven years, make application for parole, and that petitioner, having served seven years, could make such application were it not for the fact that he is also sentenced and committed for the crime of grand larceny, necessitating service of at least one calendar year of his sentence for that crime before being eligible for parole. And petitioner's attorneys argue that, unless at some unforeseeable time the Board of Pardons sees fit to grant a pardon or commutation of sentence as to the life sentence for murder, the time will never arrive permitting petitioner to commence serving his term for grand larceny, or to apply for a parole as to either of such sentences.

Petitioner's counsel concede that the sentence and imprisonment which petitioner is serving for first-degree murder is lawful, and that if this court should grant the relief petitioner seeks by habeas corpus, we would, necessarily, have to remand him to the custody of the warden, to continue serving his term of life imprisonment, unless and until paroled, pardoned commuted or otherwise released according to law. And they advance no specific reason why either the sentence of life imprisonment for first-degree murder, or the indeterminate statutory term imposed for grand larceny, is either excessive or cruel. They earnestly argue, however, that the combination of the two sentences, and, particularly, the effect of the sentence for grand larceny, in precluding petitioner from being eligible for parole as to the murder conviction, undermines, and deprives him of, that important opportunity for rehabilitation,--that, in such a situation he should not be confined to the uncertain course of awaiting a possible pardon by executive clemency at some time in the unforeseeable future, but should now be enabled to obtain justice in the courts. The justice which petitioner's counsel envision is discharge, in advance, by habeas corpus, from the sentence and future imprisonment for grand larceny, which pe...