In re Application of H. F. Mallon

• Decision Date: 12 June 1909
• Citation: 102 P. 374,16 Idaho 737
• Parties: In the Matter of the Application of H. F. MALLON, for a Writ of Habeas Corpus
• Court: Idaho Supreme Court

102 P. 374

16 Idaho 737

In the Matter of the Application of H. F. MALLON, for a Writ of Habeas Corpus

Supreme Court of Idaho

June 12, 1909

CONSTITUTION-DUE PROCESS OF LAW-TWICE IN JEOPARDY-EQUAL PROTECTION OF THE LAW-ARBITRARY PUNISHMENT.

1. Sec 6452, Rev. Codes, as follows, "Every state prisoner confined in the state prison for a term less than for life who escapes therefrom, is punishable by imprisonment in the state prison for a term equal in length to the term he was serving at the time of such escape; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison," does not deny due process of law to persons charged with a violation thereof.

2. Said section does not provide for placing in jeopardy the second time the persons charged thereunder.

3. Every person is entitled to equal protection of the law, and equal protection of the law means that equal protection and security shall be given to all under like circumstances in his life, his liberty and his property and in the pursuit of happiness, and in the exemption from any greater burdens and charges than are equally imposed upon all others under like circumstances.

4. While the legislature in prescribing and fixing punishment for crime has very great latitude in classifying the same still such classification should be natural and not arbitrary, and should be made with reference to the heinousness or gravity of the act or acts made the crime, and not with reference to matters disconnected with the crime.

5. Sec 6452, Rev. Codes, in fixing the punishment of a person who escapes from the state prison at the same term for which he is serving at the time of the escape, denies equal protection of the law to persons under like circumstances, and in providing that the escape of a state prisoner is made a crime and exempting federal prisoners and others who may be confined in the penitentiary for temporary purposes, is special and discriminatory legislation, and violates the fourteenth amendment of the constitution of the United States and the constitution of Idaho.

(Syllabus by the court.)

Original application in this court for writ of habeas corpus. Demurrer to the petition. Demurrer overruled. Petitioner ordered discharged.

Demurrer overruled, and petitioner discharged.

K. I. Perky, for Petitioner.

With reference to the punishment prescribed for the offense defined by the statute it is at once apparent that it is neither equal nor uniform, nor is it based upon the character or circumstances of the act sought to be characterized as a public offense. (Ex parte Irwin, 88 Cal. 169, 25 P. 1118; State v. Lewin, 53 Kan. 679, 37 P. 168.) In this connection we call attention to sec. 13, art. 1, constitution of Idaho, and we also rely on the provisions of the fourteenth amendment to the federal constitution. (Prin. of Const. Law, Cooley, 240, 249; Budd v. State (Tenn.), 3 Humph. 483, 39 Am. Dec. 189, 193; 8 Cyc. 1059; Barbier v. Connally, 113 U.S. 27, 5 S.Ct. 357, 27 L.Ed. 924; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, 226, 227; Northern P. Ry. Co. v. Carland, 5 Mont. 146, 3 P. 134.) To whatever class a law may apply it must act equally upon each member thereof-- that is to say, it must operate on all alike who are in a like situation. The classification underlying such legislation must be a reasonable one. If arbitrary and unreasonable, the courts do not hesitate to declare the legislation void. (Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 33 L. R. A. 589; Murray v. Board of Commrs., 81 Minn. 359, 83 Am. St. 379, 84 N.W. 103, 51 L. R. A. 828; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679; Wagner v. Milwaukee Co., 112 Wis. 601, 88 N.W. 577; Missouri P. Ry. Co. v. Mackey, 127 U.S. 205, 8 S.Ct. 1161, 32 L.Ed. 107; Nichols v. Walter, 37 Minn. 264, 33 N.W. 800; Johnson v. St. Paul & D. R. Co., 43 Minn. 222, 45 N.W. 157, 8 L. A. A. 419; State ex rel. Richards v. Hammer, 42 N.J.L. 439; Sutton v. State, 96 Tenn. 696, 36 S.W. 697, 33 L. R. A. 589; Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, 32 L. R. A. 664; Magoun v. Illinois Tr. & Sav. Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037; Gulf etc. R. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666.)

Sec. 3490, Rev. Codes, cited by respondent, has no application to this question, since the right of the warden of the state prison to receive and subject federal prisoners to the same penitentiary discipline as state prisoners is unquestioned, and the same is equally true of sec. 5539, 6th Federal Statutes Ann., also cited by respondent. The question of prison discipline is in no way involved. We call the court's attention to secs. 6331 and 7480, Rev. Stat.

D. C. McDougall, Attorney General, and J. H. Peterson, for Respondent.

"Due process of law," as adopted in the American constitution and as construed in the common law of the several states, means that a party shall have his day in court, an opportunity to be heard, and a trial of the right claimed by the plaintiff, and controverted by the defendant, with the right of each party to introduce evidence to establish his right on the part of one or his defense on the part of the other, followed by a judgment of the court upon the merits of the controversy. (Zeigler v. South & N. Ala. R., 58 Ala. 594; Bielenberg v. Montana Union R. Co., 8 Mont. 271, 20 P. 314, 2 L. R. A. 813; Catril v. Union P. R. Co., 2 Idaho 576, 21 P. 416, 5 L. R. A. 359, note, 11 L. R. A. 224, note, 13 L. R. A. 305, note.)

Whenever the law operates alike upon all persons similarly situated, equal protection cannot be said to have been denied. (8 Cyc. 1075.) The provisions of this statute are wise and in the interest of good government. (Hays v. Stewart, 7 Idaho 193, 61 P. 591.) The mere fact that the law is harsh in no sense affects the constitutionality, as the legislature is the sole judge of the expediency of enacting laws. ( Wright v. Kelley, 4 Idaho 634, 43 P. 565; 1 Sutherland's Stat. Const., p. 136.) The contention that the defendant is twice in jeopardy deserves no particular discussion. (Hays v. Stewart, supra.) A close reading of the statute in question will, we think, lead the court to the conclusion that the legislature in prescribing punishment for escapes intended that the maximum sentence should not exceed the term which the convict was serving at the time of his escape. "Where a statute contains such ambiguity as to leave reasonable doubt of its meaning, or it admits of two constructions, that which operates in favor of life or liberty is to be preferred." (2 Sutherland on Stat. Const., pp. 962, 966, 972; 44 Century Digest, cols. 308, 309.) "Considerations of public policy are always pertinent in the interpretation of a statute." (Bishop on Stat. Crimes, sec. 82.)

The sentence imposed for the crime of escape does not begin to run until the first sentence has been served; therefore, there can be no conflict between the sentence imposed by the federal court and the sentence imposed by the state courts for a crime committed within the penitentiary. Under the reading of both the federal and state statutes, and the decision of our court (Hays v. Stewart, supra), there seems to be no room for the contention that state prisoners are discriminated against in favor of the federal prisoners.

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

This is an original application for a writ of habeas corpus, and involves the constitutionality of sec. 6452, Rev. Codes. This section reads as follows: "Every state prisoner confined in the state prison for a term less than for life, who escapes therefrom, is punishable by imprisonment in the state prison for a term equal in length to the term he was serving at the time of such escape; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison."

Counsel for petitioner contends, first, "that said section, both in its general operation and its application to your petitioner in particular, deprives persons charged thereunder, and your petitioner in particular, of their liberty without due process of law; second, that said section denies to persons charged thereunder equal protection of the laws; third, that said section is unreasonable and constitutes class legislation; fourth, that said section places persons charged thereunder in jeopardy a second time for the same offense." The facts in this case are as follows:

The petitioner began the service of a two year sentence under a judgment of the district court of Shoshone county, on April 30, 1907, for the crime of burglary; and on July 9th of that year, while serving such sentence, made his escape from the state prison. He was recaptured and tried for such escape under the provisions of the section above quoted, and on September 14, 1907, was found guilty and a judgment rendered against him, in which judgment he was sentenced to undergo confinement at hard labor in such state prison for a term of two years from and after the expiration of the sentence which he was serving at the time of his escape. At the time the petition was filed in this case the judgment committing the petitioner to said prison for burglary had been fully executed, and the petitioner was serving the sentence imposed under the judgment for escape from the state prison.

We do not think that the first objection made to the statute is well taken or that any extended discussion is necessary in order to show that said section is not unconstitutional because it denies to the person named therein due process of law. This section makes certain acts a crime but in no way takes away from the persons charged with such crime any of the rights conferred generally...