Franklin v. Brown
| Decision Date | 24 March 1914 |
| Citation | 73 W.Va. 727 |
| Court | West Virginia Supreme Court |
| Parties | Franklin and Ponto v. Brown, Warden, Etc. |
Section 12, chapter 144, Code 1913, serial section 5163, prescribing penalties for robbery, is not void, as contravening section 5, article 3, of the Constitution, providing against " cruel and unusual punishment", and that "Penalties shall be proportioned to the character and degree of the offence." (p. 729).
Nor is a judgment of imprisonment for life on conviction of rob bery under said section 12, chapter 144, of the Code, void as in violation of said provisions of the Constitution, entitling the accused to discharge on habeas corpus. (p. 730).
Nor is said section 12, chapter 144, of the Code, in contravention of the fourteenth amendment or any other provision of the federal Constitution. (p. 731).
Habeas corpus by Charles Franklin and another against M. L. Brown, Warden.
Writ Refused.
Everett F. Moore, for petitioners.
A. A. Lilly, Attorney General, for respondent.
Miller, President:
On writ of habeas corpus petitioners seek discharge from imprisonment in the state penitentiary, where, by the judgment of the Circuit Court of McDowell County, they were committed for life on an indictment for robbery.
The indictment, made a part of the return of the warden, charges that petitioners "did, in and upon one William Creasy, feloniously make an assault, and him the said William Creasy did then and there feloniously put in bodily fear and danger of his life, and silver coin consisting of two fifty cent pieces of the value of fifty cents each, good and lawful money of the United States of America, of the property of the said William Creasy from the person and against the will of the said William Creasy, then and there feloniously and violently did steal, take and carry away, against the peace and dignity of the, State." This is the common law form of indictment where no dangerous weapon is used. Mayo's Guide, 596; Houston v. Commonwealth, 87 Va. 257, 265-6; 1 Wharton's Prec. of Ind. and PL, (4th Ed.) sections 410-413.
"Robbery", at common law, "is the felonious and forcible taking from the person of another of goods or money to any value, by violence or putting in fear." State v. McAllister, 65 W. Va. 97, 63 S. E. 758, 131 Am. St. Rep. 955; Houston v. Commonwealth, supra. Our statute, section 12, chapter 144, Code 1913, serial section 5163, which does not define robbery, but only prescribes the punishment, provides: "If any person commit robbery, being armed with a dangerous weapon, he shall be confined in the penitentiary not less than ten years; if not so armed, he shall be confined therein not less than five years." As we said in State v. McAllister, supra, the offense referred to in this statute is the common law offense of robbery.
The main ground, indeed the only ground, on which petitioners rely to obtain their discharge, is that our statute, which prescribes only minimum penalties, and leaves it within the power of the court to pronounce judgment of imprisonment for life, a "cruel and unusual punishment", is void, contravening section 5, of article 3, of our Constitution, providing among other things against "cruel and unusual punishment", and that "Penalties shall be proportioned to the character and degree of the offence."
We deem it quite unnecessary to enter upon any extended discussion as to what is meant by "cruel and unusual punishment", interdicted by the Constitution; and by that other clause thereof respecting what penalties may be imposed. These questions were elaborately and ably gone into by Judge Brannon in State v. Woodward, 68 W. Va. 66. As said in that case, the clause, cruel and unusual punishment, originally occurring in the Bill of Rights of 1688, was there inserted as a provision against cruel judgments like those inflicted in the days of the tyrant Stuarts, and which found its way naturally into our Constitution, and into the constitutions of most of the states. But Judge Brannon says it refers only to punishments of such cruel character as he there describes, and was not intended as a limitation on the general powers of the legislature to say what are offenses and to prescribe punishments therefor.
Robbery, from the earliest times, has always been regarded a crime of the gravest character. At common law the punishment for robbery was death, with or without benefit of clergy, according to varying statutes. 4 Sharswood's Blackstone, 243. Now by statute the punishment for robbery in England is penal servitude for life. 9 Laws of England, (Earl of Halsbury) 664, section 1333. While the punishment inflicted on petitioners in this ease is the same as prescribed in the English statute, the extreme limit under our statute, our law allows a lesser punishment and down to the minimum punishment prescribed. The statutes of the different states vary greatly in regard to the punishment prescribed for robbery. In Virginia the statute prescribes death if accomplished with violence in certain ways, or, in the discretion of the jury, not less than eight nor more than eighteen years; if...
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