In Re Allen
| Decision Date | 02 March 1915 |
| Docket Number | 14687 |
| Citation | 91 Ohio St. 315,110 N.E. 535 |
| Parties | In Re Harry Allen. |
| Court | Ohio Supreme Court |
Repeal and amendment of statutes - Provisions continuous and undisturbed, when - Section 16, Article II, Constitution -Section 12672, General Code - Unlawful sale of cocaine - Penalty for second offense - Definite term and indeterminate sentence - Habeas corpus - Validity of indeterminate - sentence law cannot be raised, how.
1. Where there is reenacted in an amendatory act provisions of the original statute in the same or substantially the same language and the original statute is repealed in compliance with Section 16, Article II of the Constitution, such provisions will not be considered as repealed and again reenacted, but will be regarded as having been continuous and undisturbed by the amendatory act.
2. The provision of Section 12672, General Code, as amended April 21, 1910, that where a person has been convicted of a second offense he shall be imprisoned in the Penitentiary is not ex post facto or retroactive when applied to a case where the second offense was committed after the enactment of the provision for the punishment of the second offense although the first offense was committed prior to the enactment of such provision.
3. Where a person who is convicted of a crime under a statute prescribing punishment by imprisonment in the penitentiary for a definite number of years is given an indeterminate sentence the question of the validity of the statute authorizing such indeterminate sentence cannot be raised in a proceeding in habeas corpus.
This is a proceeding in habeas corpus originating in this court. The petitioner, Harry Allen, represents that he is unlawfully restrained of his liberty by P.E. Thomas warden of the Ohio penitentiary. A copy of the commitment is attached to the petition as an exhibit. The petitioner says that he is confined in said institution by reason of a sentence imposed on October 31, 1911, by the court of common pleas of Lucas county, Ohio, for the confessed illegal sale of cocaine, which offense was committed on March 9, 1911, the same being the first offense of said nature committed by him after the amendment of Section 12672, General Code, April 21 1910 (101 O. L., 132). He admits that he had committed a like offense prior to April 21, 1910, and had been prosecuted and punished therefor.
He says that the court sentenced him to serve in the penitentiary "until released according to law," whereas the penalty for a first offense under Section 12672 was a fine of not less than fifty dollars nor more than five hundred dollars, and for each subsequent offense imprisonment in the penitentiary for a period of not less than one year nor more than five years.
He says that the sentence imposed upon him, under which he is confined in the penitentiary, was illegal and utterly void for the reasons that said offense being the first committed by him after the amendment of Section 12672, April 25, 1910 the court was without jurisdiction to impose a prison sentence and should have imposed a fine of not less than fifty dollars nor more than five hundred dollars, and because the sentence imposed by the court was an indefinite sentence and one which the court was without power to impose for the reason that that part of the law, Section 7388-6, Revised Statutes, empowering the court to impose an indefinite sentence, was repealed February 14, 1910, upon the adoption of the General Code, and further, if the court should hold said repeal not effective, then Section 7388-6 was unconstitutional and void, the same being in contravention of Section 11 of Article III and Section 1 of Article IV of the Constitution of Ohio, and did not confer upon the court any lawful authority to impose an indefinite sentence of imprisonment in the Ohio penitentiary, and finally, because if said court had any power to pronounce a prison sentence upon him, then, under the mandatory provisions of Section 12374, General Code, said sentence should have been for a definite term of not less than one year nor more than five years, as provided in Section 12672, which minimum term of one year, the only one which this court can be absolutely certain would have been legally imposed by the court of common pleas as a definite sentence, has been long since served and completed.
The petitioner prays that a writ of habeas corpus be issued to said P. E. Thomas as warden, and that petitioner may be discharged from such illegal imprisonment and restraint.
P. E. Thomas, warden of the Ohio penitentiary, in his answer and return, admits that the petitioner is confined in the penitentiary and deprived of his liberty, but denies that he is unlawfully or wrongfully detained or held therein.
Mr. William K. Williams, for petitioner.
Mr. Timothy S. Hogan, attorney general; Mr. Walter L. Connors and Mr. James I. Boulger, for P. E. Thomas, warden of the Ohio penitentiary.
The petitioner was indicted under Section 12672, General Code, charged with the illegal sale of cocaine, the offense having been committed on March 9, 1911. He entered a plea of guilty and was sentenced indeterminately to a term of from one to five years in the penitentiary under the provisions of what is known as the old indeterminate-sentence law, Section 7388-6, Revised Statutes, and under this sentence he is now confined in the penitentiary.
Section 12672, as amended April 21, 1910, reads as follows: "Whoever sells, barters, furnishes or gives away any quantity of cocaine, alpha or beta eucaine or alypin, or any of their salts or compounds, or any preparation or mixture containing any of the aforesaid drugs or their salts or compounds of any of the combinations, of the same, * * * shall be fined not less than fifty dollars, nor more than five hundred dollars, for the first offense, and for each subsequent offense shall be imprisoned not less than one year nor more than five years in the penitentiary."
The petitioner had been convicted and punished for an illegal sale of cocaine made on May 19, 1909. The statute under which he was then convicted did not contain the following language which appears in the amended statute: "for the first offense, and for each subsequent offense shall be imprisoned not less than one year nor more than five years in the penitentiary."
The provisions of the statute under which petitioner was first convicted were substantially reenacted in the amended statute. In the latter the sale of additional drugs named therein is made criminal, the sale of cocaine, however, being prohibited both before and after the amendment. The principal difference is the provision for punishment of subsequent offenses by imprisonment in the penitentiary.
One of the grounds upon which petitioner predicates his right to a writ of habeas corpus is that the offense for which he is now serving sentence was his first offense under the amended statute, and he should therefore have been sentenced as a first offender notwithstanding his prior conviction under the statute before its amendment.
If the amendment to the statute abrogates and repeals the original law as to those parts which have not been altered in the amending act, then his contention is well founded, but not so if the amendment is simply a continuance thereof in so far as the language of both are identical or substantially so.
By the act of April 21, 1910, when this statute was amended, the original statute was repealed. This was done under the requirements of Section 16 of Article II of the Constitution as follows: "No law shall be revived, or amended unless the new act contains the entire act revived, or the sec- tion or sections amended, and the section or sections so amended shall be repealed."
As was said in State, ex rel. Durr, v. Speigel, ante, 19, in reference to this constitutional provision: "The obvious purpose of this provision of the constitution was to avoid the confusion caused by the distribution of different parts of the same section in different enactments; but there was no intention to change the operation of the original section as to provisions which are not changed."
In Eli et al. v. Holton, 15 N.Y. 595, it is held that the effect of the amendment of a statute made by enacting that the statute "is amended, so as to read as follows," and then incorporating the changes or additions with so much of the former statute as is retained, is not that the portions of the amended statute which are merely kept without change are to be considered as having been repealed and again reenacted, nor that the new provisions or changed portion should be deemed to have been the law at any time prior to the passage of the amended act. The part which remains unchanged is to be considered as having continued the law from the time of its original enactment, and the new or changed portion to have become the law only at and subsequent to the passage of the amendment. To the same effect is the holding in Moore v. Mausert et al., 49 N.Y. 332.
...
To continue reading
Request your trial