In re Application of Chase

• Decision Date: 30 September 1910
• Parties: In the Matter of the Application of JOSEPH CHASE for a Writ of Habeas Corpus
• Court: Idaho Supreme Court

110 P. 1036

18 Idaho 561

In the Matter of the Application of JOSEPH CHASE for a Writ of Habeas Corpus

Supreme Court of Idaho

September 30, 1910

HABEAS CORPUS-CONVICTION - SENTENCE - EXCESSIVE PUNISHMENT - VOID SENTENCE-VOIDABLE.

(Syllabus by the court.)

1. Under the provisions of sec. 8 of the act known as the Indeterminate Sentence Law, approved March 11, 1909 (Sess Laws 1909, p. 81), a person convicted of a felony committed prior to the taking effect of that act and sentenced after the act was in force, must be sentenced under the law in force at the time such felony was committed.

2. Held, that the petitioner should have been sentenced under the provisions of sec. 6768, Rev. Codes, by which the minimum sentence was fixed at five years and the maximum extended to life.

3. Held, that the sentence imposed is not void ab initio, but is valid and certain as to the term of five years' imprisonment, and that the prisoner cannot be discharged on habeas corpus until he has performed so much of the sentence as was within the power of the court to impose.

4. Ex parte Cox, 3 Idaho 530, 95 Am.St. 29, 32 P. 197, commented on and distinguished.

Original application for a writ of habeas corpus to discharge the prisoner from custody on the ground that the trial court had no jurisdiction to pronounce the sentence that was imposed on the applicant. Application denied.

Writ quashed and the prisoner remanded.

Chas Clifton, and J. Nat. Hudson, for Petitioner.

The sentence must be definite and certain as regards the time of its duration. (Rev. Codes, sec. 6307.)

The prisoner should have been sentenced under that law, as provided in the act of March 11, 1909, Sess. Laws, 1909, p 85, instead of receiving an indeterminate sentence under said act.

The Idaho law of March 11, 1909, is "borrowed" from the Kansas law. (Gen. Stat. Kansas, 1909, pp. 1462, 1463.)

This law, generally known as the indeterminate sentence law, has been, by the supreme court of Kansas, held in three separate particulars to be ex post facto and void as to crimes committed before it went into effect. (State v. Tyree, 70 Kan. 203, 78 P. 525, 3 Ann. Cas. 1020. See, also, Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149; Ex parte Cox, 3 Idaho 530, 95 Am. St. 29, 32 P. 197, and authorities there cited.)

The excess of jurisdiction to render the particular judgment makes the judgment void, and the prisoner should be discharged on habeas corpus. (In re Lucas, 17 Idaho 164, 104 P. 657; In re Walton, 17 Idaho 171, 104 P. 659; Geyger v. Stoy, 1 Dall. (Pa.) 135, 1 L.Ed. 70; In re Taylor, 7 S.D. 382, 58 Am. St. 843, 64 N.W. 253, 45 L. R. A. 136.)

K. I. Perky, and D. E. Brinck, Amici Curiae.

It cannot be urged that the sentence is void for uncertainty. It is at least definite and certain as to the minimum term expressed; and indeterminate sentences are upheld wherever the question of uncertainty has been raised. (12 Cyc. 955; Ex parte Brown, 39 Wash. 160, 109 Am. St. 868, 81 P. 552; 1 L. R. A., N. S., 540, 4 Ann. Cas. 488; People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 36 N.E. 76, 23 L. R. A. 139; Murphy v. Commonwealth, 172 Mass. 264, 70 Am. St. 266, 52 N.E. 505, 43 L. R. A. 154.)

Uncertainty in the sentence, being mere error, will not alone justify discharge on habeas corpus. (Ex parte Walker, 132 Cal. 143, 64 P. 135; Elsner v. Shrigley, 80 Iowa 30, 45 N.W. 393.)

D. C. McDougall, Attorney General, O. M. Van Duyn, and J. H. Peterson, Assistants, for State.

While such sentence may be void in part, to wit, to an extent beyond the minimum sentence of five years, yet it will hold good until the five year sentence is completed, and a writ of habeas corpus sought to be brought before that time is premature. (12 Cyc. 782, subd. 7.)

This sentence is not uncertain as to the minimum length. No indeterminateness exists until at least that period is passed. (Martin v. District Court, 37 Colo. 110, 119 Am. St. 262, 86 P. 82.)

Where a judgment is merely excessive and the court which pronounces it is a court of general jurisdiction, it is not void ab initio because of excess, but is good so far as the power of the court extends, and is invalid only after the excess, and therefore, a person in custody under such sentence cannot be discharged on habeas corpus until he has suffered or performed so much of it as it is within the power of the court to impose. (United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631; In re Graham, 74 Wis. 450, 17 Am. St. 174, 43 N.W. 148; In re Graham, 138 U.S. 461, 11 S.Ct. 363, 34 L.Ed. 1051; In re Pikulik, 81 Wis. 158, 51 N.W. 261; 15 Am. & Eng. Ency. Law, 2d ed., 171, and authorities cited.)

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This is an original application to this court for a writ of habeas corpus for the release of the applicant, Joseph Chase, who, it is alleged, is unlawfully imprisoned and restrained of his liberty by John W. Snook, the warden of the state penitentiary.

It is alleged in the petition that said imprisonment and restraint are illegal, and that the illegality consists in the fact that the said Chase was on the 9th day of November, 1909, in the district court of Bingham county, convicted of the crime of rape, committed on or about the 1st day of January, 1909, and thereupon sentenced by the judge of said court to be imprisoned for a term of from five to fifteen years in the state penitentiary; that said term of imprisonment is indefinite and uncertain, and was imposed under and by virtue of the law of the state of Idaho which took effect on the 6th day of May, 1909, known as the indeterminate sentence law (Sess. Laws 1909, p. 82), and long after the commission of the crime for which said Chase was sentenced, and it is contended that said court should have sentenced said Chase under the law in force when said crime was committed, to wit, under the provisions of sec. 6768, Rev. Codes.

The above-stated facts in regard to the conviction and sentence of the defendant are admitted by the return of the warden and conceded by counsel for the state. Sec. 8 of the said act known as the indeterminate sentence law provides, among other things, that persons convicted of a felony prior to the taking effect of said act and sentenced after said act went into force, should be sentenced under the law in force at the time the felony was committed. Therefore, it is clear that the court committed an error in sentencing said applicant under that act.

Under the provisions of sec. 6768, Rev. Codes, the plaintiff could not have been sentenced for a less term than five years. Sec 1 of said indeterminate sentence law provides, among other things, that the court imposing the sentence shall not fix the limit or duration of the sentence, but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less than the minimum provided by law for the crime for which the person was convicted and sentenced. As the law existed at the time said crime was committed, the minimum penalty for the crime of rape was five years imprisonment and the maximum...