Howard v. State

• Decision Date: 19 June 1925
• Docket Number: Criminal 614
• Citation: 237 P. 203,28 Ariz. 433
• Parties: C. E. HOWARD, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

237 P. 203

28 Ariz. 433

C. E. HOWARD, Appellant, v. STATE, Respondent

Criminal No. 614

Supreme Court of Arizona

June 19, 1925

APPEAL from an order of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Order reversed and case remanded.

Mr. C H. Young and Mr. John W. Ray, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. A. R. Lynch, Mr Earl Anderson and Mr. Frank J. Duffy, Assistant Attorneys General, for the State.

OPINION

LOCKWOOD, J.

C. E Howard was convicted in the superior court of Maricopa county of the crime of perjury, and was, on March 15th, 1924, sentenced to serve a term of not less than seven nor more than ten years in the state prison. No complaint is made of the regularity of the proceedings up to the time of his incarceration. On December 13th, 1924, a motion, with an affidavit in support thereof, was filed in the case in the superior court, setting up substantially that on July 20th, 1924, "without fault on his part or cause therefor, and without trial or charge or investigation or notice being given or even explanation or excuse being given," he was placed in a dark cell or dungeon, and for thirty days fed on bread and water. which confinement continued until the day of the motion; that he was allowed to speak to no person except the one who brought his food; and that only twice during said period had he been allowed to leave the dungeon, and then but for a few hours at a time as a witness in certain proceedings. The prayed for was that a citation be directed to the superintendent of the prison ordering him to show cause why petitioner should not be given the same treatment as other prisoners, and why the superintendent should not be punished for contempt for violation of the order of commitment. The court made an order denying the motion for an order to show cause, and petitioner appealed.

The crowning glory of the criminal jurisprudence of the English-speaking peoples is and ever has been that the life, liberty, and property of the humblest citizen could only be invaded by the law, and in strict conformity to that law. From the days of Magna Charta when the free barons of England wrung from a tyrannical king the solemn promise that, "no freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land," down to our own Constitution (article 2, §§ 4, 15), with its reaffirmation that "no person shall be deprived of life, liberty or property without due process of law," and that "no cruel nor unusual punishment shall be inflicted," the rule is the same. Nor does a conviction of crime alter the rule. The sentence pronounced must be only that which the law annexes to the offense. In re Bonner, 151 U.S. 242, 38 L.Ed. 149, 14 S.Ct. 323. And, such sentence must be carried out as imposed, the executive officers of the state having no power either to increase or diminish its severity except as prescribed by law. Ex parte McClure, 6 Okl.Cr. 241, 118 P. 591; Ex parte Pearson, 59 Ala. 654; Kirby v. State, 62 Ala. 51.

For many centuries the fundamental idea back of criminal law was one of vengeance. Criminal proceedings were not instituted by the state, but by the injured party, or in case of his death by his relatives, and if they were satisfied with the reparation offered by the offender, the state was indifferent unless it concerned certain offenses directly affecting the public peace and safety. The old Mosaic doctrine of "an eye for an eye and a tooth for a tooth" held full sway, and the punishment was, so far as possible, analogous to the crime. Gradually, however, it was realized that society at large was entitled to protection against the recurrence of the same offense, and since it was then accepted without question that the criminal sinned through deliberation and free will, the law, following the gloomy theology of that period, endeavored to repress crime through fear, and punishment grew more and more terrible. To us of the present generation the burning, breaking on the wheel, boiling alive, and the various tortures of the law which continued up to even a comparatively recent period, read like scenes from the Inferno of Dante.

But beginning with the eighteenth century a new thought gradually arose. First timidly advanced by a little group of philosophers, it spread, until now there are few, if any, who will openly uphold the old idea that vengeance for the crime is the purpose of punishment by law, while many students of criminology believe that crime is as truly a disease as insanity, and should be treated as such, and even those who do not go to that extent hold that if punishment ever as a matter of fact deters crime, it is its certainty rather than its severity...