In re Tyson

• Decision Date: 20 March 1895
• Parties: In re TYSON.
• Court: Colorado Supreme Court

39 P. 1093

21 Colo. 78

In re TYSON.

Supreme Court of Colorado

March 20, 1895

Henry Tyson, convicted of murder, petitions for a writ of habeas corpus. Denied.

N. Q Tanquary, for petitioner.

HAYT C.J.

At the April term, 1889, of the district court of Arapahoe county petitioner, Henry Tyson, was convicted of murder of the first degree, and sentenced accordingly. In compliance with the terms of that sentence, he was conveyed to the Colorado state penitentiary for execution, but, before the week of execution had arrived, he was granted a reprieve for 60 days by the governor, to the end that the condition of his mind might be inquired into. In the month of October, 1889, he was brought before the court, and a jury impaneled for the purpose of inquiring into his mental condition. At the first trial the jury disagreed, but at a subsequent trial the petitioner was adjudged to be insane. From said last-mentioned date, and until the 9th day of March, 1895, he has been confined either in the state penitentiary or in the state insane asylum, as an insane prisoner under conviction; but on the latter date he was again brought before the district court of Arapahoe county, in order that his then mental condition might be inquired of. This last inquisition resulted in his being adjudged sane, upon the 15th day of March, 1895, at which time a sentence of death was pronounced, to be executed during the week commencing April 8, 1895. Petitioner, at the time of making this application, was confined in the common jail of Araphahoe county, in the custody of the sheriff, awaiting transportation to the state penitentiary at Canon City, the place designated as the place of execution of the death penalty. The crime for which the accused is under sentence was committed before the passage of the act of April 19 1889, which act made some changes as to the time, place, and other incidents pertaining to the infliction of the death penalty; and the claim is that, as the act in force at the time of the commission of the crime has been repealed, the act of April 19, 1889, is ex post facto as to petitioner, and that, for this reason, he is entitled to his liberty.

This is the second application that has been made in this case for the discharge of the prisoner under the habeas corpus act. The first application was made at the September term, 1889. Upon that application the writ was granted, and the petitioner brought before the court; but, after a full hearing, it was adjudged that the changes made by the act of 1889 were referable to prison discipline, and, as such, were within the power of the legislature to enact, and that the changes were not sufficient to render the act ex post facto. The prayer of the petition was, for this reason, denied, and the prisoner remanded. In re Tyson, 13 Colo. 482, 22 P. 810. After that decision was announced, the statute under consideration was passed upon by the supreme court of the United States in two cases, in which Medley and Savage were respectively petitioners. 134 U.S. 160, 10 S.Ct. 384, and 134 U.S. 176, 10 S.Ct. 389. In these cases it was held by the court (Justices Brewer and Bradley dissenting) that the law was ex post facto as to those offenses committed before the passage of the act, and the petitioners were accordingly discharged, as the result of the habeas corpus proceedings. The facts stated in the present petition are the same as those presented in the former, with a history of the case since the former application was determined. The decision of the United States supreme court in the Medley and Savage Cases is relied upon for the purpose of procuring the discharge of the petitioner. We, of course, recognize as binding upon all courts, national and state, the decision in the Medley and Savage Cases; that decision having been based upon the provision of the United States constitution prohibiting ex post facto laws, and emanating from the court of last resort upon questions of this character. It is claimed, however, that the doctrine announced in the Medley and Savage Cases has been modified as the result of several decisions rendered by the same tribunal since the announcement of the opinion in the Medley and Savage Cases but while it is true that similar questions with reference to the statutes of other states have been passed upon by that court, and although in some of these cases some portions of the argument resorted to by the court in support of the conclusion reached in the Medley and Savage Cases have been to some extent modified, the decision, in so far as the ex post facto character of our statute is concerned, has not been departed from by the national tribunal, but, on the contrary, it has been expressly recognized in subsequent cases. Holden v. Minnesota, 137 U.S. 483, 11 S.Ct. 143; McElvaine v. Brush, 142 U.S. 155, 12 S.Ct. 156. And in the recent case of Kelly v. People, 17 Colo. 130, 29 P. 805, the ex post facto character of the statute, as the same was interpreted by the supreme court of the United States, was expressly recognized by this court. Kelly was convicted of murder of the second degree in the district court of El Paso county, and sentenced to imprisonment for 26 years; the judge presiding at the trial expressly instructing the jury that he could not be convicted of murder of the first degree, by reason...