In re Miller

• Decision Date: 15 February 1913
• Citation: 23 Idaho 403,129 P. 1075
• Parties: In re MATT MILLER--Application for Writ of Habeas Corpus
• Court: Idaho Supreme Court

129 P. 1075

23 Idaho 403

In re MATT MILLER--Application for Writ of Habeas Corpus

Supreme Court of Idaho

February 15, 1913

HABEAS CORPUS-JURISDICTION OF COURT-CRIME AGAINST NATURE-MINIMUM AND MAXIMUM PENALTY-CONSTRUCTION OF STATUTES.

1. Under the provisions of sec. 6810, Rev. Stats. of 1887, the minimum punishment of one found guilty of the infamous crime against nature is imprisonment in the state penitentiary for not less than five years, and the length of imprisonment in excess of five years is left to the discretion of the court.

2. As sec. 6810 prescribes the punishment for said offense, sec 6312, Rev. Stats. of 1887, has no application and does not fix the maximum punishment for said crime.

3. Sec 6312, Rev. Stats. 1887, only prescribes the punishment for felonies in cases where the punishment is not prescribed by other sections of the statutes.

4. The cases of State v. Mulkey, 6 Idaho 617, 59 P. 17, In re Rowland, 8 Idaho 595, 70 P. 610, and In re Burgess, 12 Idaho 143, 84 P. 1059, cited and distinguished.

5. The maximum punishment for misdemeanors is fixed by sec. 6313 Rev. Stats. of 1887, where it is not otherwise fixed by other sections of the statutes.

(AILSHIE C. J., dissents.)

Original application on behalf of Matt Miller for a writ of habeas corpus. Writ quashed and the prisoner remanded.

Action dismissed, writ quashed and the prisoner remanded.

Charles Clifton, for Petitioner.

A district judge has no jurisdiction to sentence for a longer period than five years one charged with and found guilty of the crime against nature. (Black on Judgments, sec. 253, p. 316; Ex parte Cox, 3 Idaho 530, 95 Am. St. 29, 32 P. 197; In re Lucas, 17 Idaho 164, 104 P. 657; In re Walton, 17 Idaho 171, 104 P. 659, and In re Chase, 18 Idaho 561, 110 P. 1036.)

J. H. Peterson, Attorney General, and J. J. Guheen and T. C. Coffin, Assistants, for Respondent.

The court had jurisdiction to sentence defendant for a longer period than five years. The punishment by imprisonment for a number of years beyond five was left to the discretion of the court. If the court had sentenced the prisoner for a period of less than five years, then the application for a writ of habeas corpus would lie. (Ex parte Cox, 3 Idaho 530, 95 Am. St. 29, 32 P. 197.)

The power of the court to pass a sentence in excess of the minimum, or less than the maximum, has been squarely passed upon in the case of People v. Nop, 124 Cal. 150, 56 P. 786. (People v. Haagen, 139 Cal. 115, 72 P. 836.)

SULLIVAN, J. Stewart, J., concurs. AILSHIE, C. J., Dissenting.

OPINION

SULLIVAN, J.

The petitioner applied to this court for a writ of habeas corpus, and it is alleged in his petition that he is unlawfully imprisoned in the state penitentiary. The facts set up showing the alleged unlawful imprisonment are as follows: On the 26th of November, 1898, petitioner was found guilty in the district court of Lincoln county of the infamous crime against nature and sentenced to punishment therefor in the state penitentiary for a term of twenty-five years. Thereafter, on or about November 30, 1898, he was delivered into the custody of the officers of the penitentiary pursuant to said sentence, and ever since said date and still is confined in said penitentiary, and it is alleged that as a matter of law the trial court was without jurisdiction to sentence him for a longer term than five years, and that he has long since completed the service of that term and should now be discharged from said imprisonment, and that he is held as a prisoner for no other reason than because of said sentence of twenty-five years' imprisonment.

Upon that application the writ was issued, commanding the warden of the state penitentiary to produce the body of petitioner and show cause why the prayer of said petition should not be granted. Upon the return day said matter was heard upon a general demurrer to the petition.

The first question presented is, Had the trial court jurisdiction to sentence the defendant for more than five years upon his conviction for said crime? The defendant was convicted under the provisions of sec. 6810, Rev. Stats. of 1887, which sections bears the same number in the Revised Codes, and is as follows:

"Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the Territorial prison not less than five years."

It will be observed that the minimum sentence for that crime is fixed by that section, leaving it to the discretion of the court to fix the maximum sentence, which the court did in this case at twenty-five years.

It is contended by counsel for petitioner that the maximum punishment for said crime is fixed by sec. 6312, Rev. Stats. of 1887, which is the same as sec. 6312, Rev. Codes, which section is as follows:

"Except in cases where a different punishment is prescribed by this Code, every offense declared to be a felony, is punishable by imprisonment in the territorial prison not exceeding five years, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment."

Under the provisions of said sec. 6810, the term of imprisonment fixed is not less than five years and the maximum is left to the discretion of the court, hence, that section prescribes the punishment for said offense, and since both the maximum and minimum sentences are in fact provided for by sec. 6810, the minimum being expressly fixed and the maximum left to the discretion of the court, it does not come within the provisions of sec. 6312, as it applies only to offenses where no punishment whatever is prescribed. Said sec. 6312 prescribes the punishment of acts declared to be felonious in cases where the statute did not provide the punishment and was intended to deal fully and completely, so far as the punishment was concerned, with all cases of felony where no other punishment had been provided. It was not intended to supplement other sections of the penal code that had already provided a penalty for the punishment of such crimes. Sodomy, the crime for which defendant was convicted, was at common law a felony punishable by death. (36 Cyc., p. 502, and authorities there cited.) Under our statutes the only crime punishable with death is that of murder in the first degree, and no one would contend that a court, under the provisions of said sec. 6810, would have the authority to have a man executed who had been convicted of the crime mentioned in said section, but the legislature no doubt considered it a grave crime and fixed the minimum punishment at five years' imprisonment, and left it to the sound discretion of the court to fix the maximum according to the facts of each case.

Many of the penal statutes of this state, as well as of other states, prescribing the punishment by imprisonment for felonies either prescribe a minimum punishment, leaving the maximum to the court, or prescribe a maximum, leaving the minimum to the discretion of the court, or provide both a minimum and a maximum, leaving any sentence between the minimum and maximum to the discretion of the court. Said sec. 6810 provides that the punishment shall be "not less than five years"; that is the minimum. Sec. 6312 provides, "Except in cases where a different punishment is prescribed," every offense declared to be a felony, is punishable by imprisonment "not exceeding five years," so far as imprisonment is concerned. Five years is there fixed as the maximum: or, instead of such imprisonment, a fine not exceeding $ 5,000, or by both such fine and imprisonment. Then we have this anomalous condition if these two sections are to be construed as affecting the same crime: The same term of imprisonment is prescribed in each section, one the maximum and the other the minimum, and the one providing that five years' imprisonment shall be maximum has only the additional punishment of a fine not exceeding $ 5,000. So if these two sections be construed together, the maximum prescribed by sec. 6312 is the minimum prescribed by sec. 6810. In construing them both together, the term of imprisonment is absolutely fixed at five years--no more, no less--minimum and maximum being the same. It does not seem probable that the legislature should have contemplated such a condition of things as would exist if said sections are construed together, one as providing the maximum and the other a minimum punishment. Said sec. 6312 applies only to felonies where no other punishment is fixed and where no penalty whatever is prescribed by other provisions of the statute. And said section 6810 in order of number, at least, is subsequent to sec. 6312. Supposing sec. 6810 had prescribed the minimum punishment at not less than six years, would anyone then contend that sec. 6312 had any application to the case? We think not.

It is next contended that the decisions of this court in State v. Mulkey, 6 Idaho 617, 59 P. 17; In re Rowland, 8 Idaho 595, 70 P. 610, and In re Burgess, 12 Idaho 143, 84 P. 1059, are in conflict with the views above expressed. In the three cases cited above, the contention was made that the antigambling law was unconstitutional and for the reason that it only fixed the minimum penalty for its violation and established no maximum penalty whatever, and that question was answered in State v. Mulkey, supra, as follows:

"The act in question fixes the minimum punishment, but does not fix the maximum. Section 1 of said act makes the offense a misdemeanor. Section 6313 of the Revised Statutes is as follows: 'Except in cases where a different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by fine not exceeding three hundred...