In re Application of Faltin

• Decision Date: 28 March 1927
• Docket Number: Civil 2623
• Parties: In the Matter of the Application of WILLIAM FALTIN for a Writ of Habeas Corpus
• Court: Arizona Supreme Court

254 P. 477

31 Ariz. 465

In the Matter of the Application of WILLIAM FALTIN for a Writ of Habeas Corpus

Civil No. 2623

Supreme Court of Arizona

March 28, 1927

Original proceeding for Writ of Habeas Corpus. Writ quashed and petitioner remanded.

Mr John W. Ray and Mr. Chas. H. Young, for Petitioner.

Mr John W. Murphy, Attorney General, Opposing Application of Petitioner.

OPINION

LOCKWOOD, J.

William Faltin, hereinafter called petitioner, made application for a writ of habeas corpus, alleging that he was unlawfully imprisoned by the superintendent of the state prison. The writ was granted and, contrary to our usual practice, issued by and made returnable before this court sitting in banc, for the reason that it showed on its face it involved questions the correct and speedy determination of which is of importance to the state as a whole, as well as to the petitioner as an individual. The facts necessary for the determination of the matter are not disputed, and the issue is solely one of law.

On October 9th, 1912, an information was filed against petitioner in the superior court of Maricopa county, charging that he had committed the crime of murder on or about the ninth day of September of that year. He was duly tried and convicted of murder in the first degree, and the penalty fixed by the jury at death. On the eighth day of February 1913, the superior court of Maricopa county pronounced judgment on the verdict, sentencing him to be hanged upon the eighteenth day of April. An appeal was taken to the Supreme Court of this state, and the judgment of the superior court was duly affirmed on the twenty-third day of September, 1915, and petitioner ordered to be executed upon the twenty-sixth day of November. For some reason he was not executed as provided by the last order, and on the third day of December he was brought before the superior court of Maricopa county and resentenced to be hanged upon the seventh day of January, 1916.

On the tenth day of December the county attorney of Pinal county, in which county the state prison is situated, filed in the superior court of Pinal county a petition setting up the conviction and the judgment and orders aforesaid, alleging that petitioner was insane, and asking that the question of his sanity be inquired into. A jury was impaneled to try such issue in accordance with the provisions of paragraphs 1141-1143, Penal Code of Arizona of 1913, which jury on the eighteenth day of December returned a verdict that he was insane. He was then committed to the State Asylum for the Insane, where he remained until the eighteenth day of August, 1917. On that day he was duly discharged by the superintendent of said hospital as being sane; the fact was certified to the Governor, and petitioner was returned to the state prison and to the custody of the superintendent thereof, where he has since remained in such custody by virtue of the various proceedings, orders, and certificates aforesaid.

At the time it was alleged petitioner had committed the crime of which he was convicted, and at all times thereafter until October 1st, 1913, the penalty for the crime of murder was governed by section 174, Penal Code of Arizona of 1901, which read as follows:

"Every person guilty of murder in the first degree shall suffer death or imprisonment in the territorial prison for life, at the discretion of the jury trying the same, or, upon the plea of guilty, the court shall determine the same; and every person guilty of murder in the second degree is punishable by imprisonment in the territorial prison not less than ten years."

On the date last mentioned the new Penal Code went into effect. Section 173 thereof is identical in language with section 174, supra, except that the word "territorial" is changed to "state."

In 1909 the Twenty-Fifth Territorial Legislative Assembly passed chapter 28 of the Session Laws of that year, amending, among other things, certain sections of the Penal Code of 1901 so that when amended they read as follows:

"10279. If, after his delivery to the superintendent for execution, there is good reason to believe that a defendant, under judgment of death, has become insane, the superintendent must call such fact to the attention of the district attorney of the county in which the prison is situated whose duty it is to immediately file in the district court of such county a petition, stating the conviction and judgment and the fact that the defendant is believed to be insane, and asking that the question of his sanity be inquired into. Thereupon the court must at once cause to be summoned and impaneled from the regular jury list of the county, a jury of twelve persons to hear such inquiry.

"1028. The district attorney must attend the hearing and may produce witnesses before the jury, for which purpose he may issue process in the same manner as for witnesses to attend before the grand jury, and disobedience thereto may be punished in like manner as disobedience to process issued by the court.

"1029. The verdict of the jury must be entered upon the minutes, and thereupon the court must make and cause to be entered an order reciting the fact of such inquiry and the result thereof, and when it is found that the defendant is insane the order must direct that he be taken to the Territorial Asylum for the Insane, and there kept in safe confinement until his reason is restored.

"1030. If it is found that the defendant is sane, the superintendent must proceed to execute the judgment as specified in the warrant; if it is found that the defendant is insane, the superintendent must suspend the execution, and transmit a certified copy of the order mentioned in the last section to the governor, and deliver the defendant, together with a certified copy of such order, to the medical superintendent of the asylum named in such order. When the defendant recovers his reason the superintendent of such asylum must certify that fact to the governor, who must thereupon issue to the superintendent his warrant, appointing a day for the execution of the judgment."

"1033. If for any reason a judgment of death has not been executed, and it remains in force, the court in which the conviction is had, on the application of the district attorney of the county in which the conviction is had, must order the defendant to be brought before it, or if he is at large, a warrant for his apprehension may be issued. Upon the defendant being brought before the court, it must inquire into the facts, and if no legal reason exists against the execution of the judgment, must make an order that the superintendent of the territorial prison, to whom the sheriff is directed to deliver the defendant, execute the judgment at a specified time. The superintendent must execute the judgment accordingly. From an order directing and fixing the time for the execution of a judgment, as herein provided, there is no appeal."

These provisions were carried over almost literally into the Penal Code of 1913.

In 1916, and while petitioner was in the State asylum for the Insane as aforesaid, the people of Arizona adopted an initiative act, which reads as follows:

"Be it enacted by the people of the state of Arizona:

"Section 1. That paragraph 173, chapter I, title viii, Penal Code, of the Revised Statutes of Arizona, 1913, be and the same is hereby amended so as to read as follows:

"'173. Every person guilty of murder in the first degree shall suffer imprisonment for life, and every person guilty of murder in the second degree shall be confined in the State Prison for not less than ten years. No person convicted of the crime of murder shall be recommended for pardon, commutation or parole by the board of pardons and paroles except upon newly discovered evidence establishing to the satisfaction of all the members of said board his or her innocence of the crime for which conviction was secured.'

"Sec. 2. All acts and parts of acts in conflict with this act are hereby repealed."

This act remained in force until the fifth day of December, 1918, when the people approved another initiative act which restored the death penalty to section 173, supra, by making it read as it had originally appeared in the Penal Code of 1913, and also included provisions almost identical in language with the portions of the act of 1909 above quoted, which had been in substance carried over into the Penal Code of 1913.

It is the contention of petitioner that the initiative act of 1916 above quoted, which abolished the death penalty for the crime of murder in the first degree, and in its second section repealed all laws in conflict therewith, was as a matter of law a legislative pardon for the offense whereof he had been convicted, and that he therefore is entitled to his full and unrestrained liberty in the same manner as though he had been pardoned by the Governor upon the recommendation of the board of pardons and paroles. The argument whereby he reaches this conclusion may be summarized as follows: Under the Constitution of the United States, article 1, section 10, and the Constitution of the state of Arizona, article 2, section 25, no ex post facto law may ever be enacted by the state of Arizona. The crime of which defendant was convicted was committed in 1912. Any act passed subsequent to the commission of that crime and affecting the penalty thereof would be, so far as he is concerned, an ex post facto law. Since the statute under which he had been convicted was repealed in 1916, he cannot now be punished thereunder, for it is no longer the law. Since the initiative act of 1916, so far as he is concerned, is an ex post facto law, he may not be punished according to its provisions, much less those of 1918.As there is no law in effect under which he...