Hukoveh v. Alston

• Decision Date: 26 June 1917
• Docket Number: 908
• Citation: 165 P. 988,25 Wyo. 122
• Parties: HUKOVEH v. ALSTON
• Court: Wyoming Supreme Court

165 P. 988

25 Wyo. 122

HUKOVEH v. ALSTON

No. 908

Supreme Court of Wyoming

June 26, 1917

ORIGINAL proceedings of habeas corpus by Hukoveh against Felix Alston, as warden of said penitentiary.

The material facts are stated in the opinion.

Ivan S Jones, for plaintiff.

It is conceded that plaintiff was of the age of eighteen years and one month at the time of his conviction. He should have been sentenced to the Wyoming Industrial Institute and it was error to sentence him to serve a term in the penitentiary. (Sec. 540, Ch. 44, Comp. Stats. 1910; Sec. 8, Ch. 63, Laws 1913.) Every offender includes every person of the class mentioned. (Geary v. Parker, 47 S.W. 238, 239; Washington v. State, 17 Wis. 147, 148.) "Every" means all the separate individuals which constitute the whole. (Purdy v. People, 4 Hill, 384; Blackburn v. State, 36 N.E. 18, 21.) The words "shall be sentenced to imprisonment in the Wyoming Industrial Institute," used in the Laws of 1913, are mandatory, the word "shall" having a compulsory meaning. (State v. Meeker, 105 N.E. 906, 907, citing Morrison v. State, 105 N.E. 113; Robertson v State, 10 N.E. 582; Board v. Bank, 89 N.E. 904; Ex parte Jordan, 24 L.Ed. 123; 35 Cyc. 1451; Re. Smith, 97 N.Y. 577; Petition of Douglas, 46 N.Y. 42, 44; Madderon v. Chicago, 62 N.E. 846; Buck v. Danzenbacker, 37 N. J. Law, 359, 361; Ex parte Simonton, 9 Port. 290, 394, 33 Am. D. 320.) A statute is mandatory when the prescribed mode of action is of the essence of the thing to be accomplished. (Gallup v. Smith, 12 L. R. A. 353; Rock Island v. U.S. 18 L.Ed. 422.) When a specific enumeration concludes with a general term it is held to be limited to things of the same kind. (People v. Dolan, 39 P. 754.) "Shall" is made interchangeable with "may" in the criminal code. (Sec. 6028.) But does not extend to Chapter 44, or the Law of 1913. The Law of 1913 repeals all acts in conflict. It is generally safe to reject an unnatural interpretation. (Ardmore Coal Co. v. Bevil, 61 F. 757; Shulthis v. MacDougal, 162 F. 331, 340; People v. Deyo, 74 N.E. 430, 431.) Unless there is adequate ground for the conclusion, nothing is to be added to or subtracted from statutory words of general scope and comprehensiveness. (Kinkalman v. Gibbon, 84 N.E. 985; Pittsburg v. Kalchthaler, 7 A. 921, 114 Pa. 547, 552; Flowing Wells Co. v. Culin, 95 P. 111.) It is presumed that the Legislature acted from pure motives. (State v. Harden, 58 S.E. 717.) The trial court cannot be familiar with the character of the convict and the Legislature therefore placed the discretion entirely with the Board of Charities and Reform. The purpose of the Law of 1913 is to relieve immature offenders from infamous punishment, until it has been determined that he is not subject to discipline. That construction is preferred which is most favorable to defendant. (Brooks v. The People, 24 P. 553; Com. v. Martin, 17 Mass. 359; Gibson v. State, 38 Ga. 573.) Criminal statutes are construed strictly. (Hill v. State, 53 Ga. 125, 127; State v. Chapman, 5 P. 768, 769; Remington v. State, 1 Ore. 281; Lowell v. State, 23 Ia. 304; Gibson v. State, 38 Ga. 571.) Courts cannot supply omissions in defective statutes. (36 Cyc. 1113.) The sentence was unauthorized. (Bandy v. Hehn, Warden, 10 Wyo. 168.) Habeas corpus is the proper remedy. (Ex parte Lange, 18 Wall. 176, 21 L.Ed. 879; Re. Cica, 51 L. R. A. N. S. 373; Re. Fanton, 55 Neb. 703, 70 Am. St. 418, 76 N.W. 447; Re. Tani, 91 P. 137, 13 L. R. A. N. S. 518; Ex parte Page, 49 Mo. 291; Re. Allen, 139 Mich. 712, 103 N.W. 209; Ex parte Cox, 32 P. 197; Ex parte MacDonald, 146 P. 942; State v. District Court, 89 P. 63; Re. Downey, 78 P. 772; Re. Farrell, 92 P. 785; Hovey v. Sheffner, 16 Wyo. 254.) The words "every offender" designate a class and take away the discretion of the trial court, placing the discretion in the hands of the Board of Charities and Reform.

D. A. Preston, Attorney General, for the State.

The question presented is whether the court erred in sentencing the plaintiff to the penitentiary instead of to the Wyoming Industrial Institute. Chapter 44, Comp. Stats., authorizes courts to sentence certain persons to a reform institution in some other state. Chapter 206, Comp. Stats., relates to juvenile delinquents. Chapter 107, Laws 1911, provides for the establishment of a state industrial institute. Chapter 63, Laws 1913, relating to state institutes, provides that the class of persons referred to in Section 540, Comp. Stats., may, in the discretion of the court, be sentenced to the state institute in accordance with said section, the section in question limiting said class of persons to those between the ages of sixteen and twenty-five years convicted of felonies. Section 3127, Comp. Stats., relates to minors under the age of sixteen convicted of any offense except homicide and provides for their care and training. In the enactment of the several provisions of the statutes relating to juvenile delinquents and minor convicts, it was the purpose of the lawmakers that those to be imprisoned and committed in the state reformatory should be those under sixteen years of age convicted of any offense, except homicide, those between the ages of ten and sixteen years found incorrigible and vicious and those between the ages of sixteen and twenty-five convicted of felony, who in the judgment of the trial court should be sent to said reformatory. The element of judicial discretion undoubtedly controls. The object of courts in construing statutes is to ascertain the true intent and meaning of the Legislature. (In re. Moore, 4 Wyo. 98.) The contention of counsel for plaintiff as to the interpretation of the word "shall" as used in the statute is not in accord with the evident intention of the statute itself. It was clearly the intention that the reformatory should be designated as the place of confinement of convicts for whom there was hope of reform. It was not intended that degenerates beyond hope of reformation convicted of heinous crimes should be sentenced to imprisonment at the institute, if the court in its discretion believed that they should be sent to the penitentiary. Flexibility of this record was provided in order to do justice to a convict himself, inmates already at the reformatory and to establish order in general.

POTTER, CHIEF JUSTICE. BEARD, J., concurs.

OPINION

POTTER, CHIEF JUSTICE.

This is a habeas corpus proceeding, the plaintiff, John Hukoveh, alleging that he is illegally restrained of his liberty by imprisonment in the state penitentiary. Upon an information charging him with the crime of robbery, and his plea of guilty, he was sentenced by the District Court in Lincoln County on February 15, 1917, to imprisonment in the state penitentiary for the term of not less than four nor more than six years; and under a mittimus issued out of said court reciting the judgment and directing the sheriff to take and deliver the plaintiff to said penitentiary and the warden and other officers thereof, to keep and imprison him therein for the term of said sentence, he was delivered to and received at the penitentiary and is now there confined. The petition alleges these facts, and also that the charge and sentence was for a first offense, and that the plaintiff at the time of the sentence was under the age of twenty-five years, viz.: eighteen years. The facts are not in dispute, but the answer denies that the plaintiff's imprisonment is unlawful.

The contention on behalf of the plaintiff is that the court was without authority to sentence him to imprisonment in the penitentiary, and that its only authority to sentence him to imprisonment was to require that he be imprisoned in the Wyoming Industrial Institute. That contention is based upon Section 540, Compiled Statutes, 1910, and Section 8 of Chapter 63 of the Laws of 1913. Section 540, Compiled Statutes of 1910, is the first section of Chapter 44 of that compilation and was enacted as the first section of Chapter 90 of the Laws of 1909. It reads as follows:

"Any person between the ages of 16 and 25 years, convicted of a felony, who has not theretofore been convicted of a crime punishable by imprisonment in the state penitentiary, may, in the discretion of the trial court, be sentenced to imprisonment in the reformatory of the state, with which the State Board of Charities and Reform of this state may make arrangements for the care, custody and maintenance of such convict, as hereinafter provided, such person to be confined in such reformatory under the provisions of the law relating to that institution, and under the rules and regulations governing the same, to be treated, cared for, kept and confined in such reformatory in the same manner and for the same period of time, not exceeding the maximum term provided by the laws of this state for the offense of which the offender was convicted, as are convicts sentenced to such institution by the courts of the state in which such institution is situate and located. In imposing sentence in all such cases the courts of this state shall not fix or limit the duration of the period of confinement in such reformatory further than that it shall not in any event exceed the maximum term provided by the laws of this state for the offense of which the prisoner was convicted; Provided, however, That the Governor of this state may upon the recommendation of the superintendent, superior officer or governing body of any such reformatory grant to such convict a parole or discharge from said reformatory in accordance with the laws of the state in which the same is situated or the rules of such institution."

The title of the original act was: "An Act authorizing the District Court of this state, in sentencing certain persons convicted of felonies, to sentence...