Lee v. State

• Decision Date: 27 April 1933
• Docket Number: 8 Div. 492.
• Citation: 227 Ala. 2,150 So. 164
• Parties: LEE v. STATE.
• Court: Alabama Supreme Court

150 So. 164

227 Ala. 2

LEE v. STATE.

8 Div. 492.

Supreme Court of Alabama

April 27, 1933

Question certified by Court of Appeals.

James J. Lee, alias J. J. Lee, was convicted of arson in the first degree, and he appealed to the Court of Appeals, which certified a question to the Supreme Court under Code 1923, § 7322.

Question answered.

BROWN Justice.

The appellant was indicted, tried, and convicted of the offense of arson in the first degree, the offense denounced by section 3289 of the Code of 1923, as amended by the act approved September 9, 1927, entitled "An Act to amend Sections 3289, 3290, 3291, 3292, 3293 and 3294 of the Code of Alabama, relating to the crime of arson and attempt to commit arson." Gen. Acts 1927, pp. 552-554.

The appellant on his trial questioned the constitutionality of said act, and this question has been submitted to this court by the Court of Appeals.

Appellant's first contention is that the act violates section 15 of the Constitution, which provides "That excessive fines shall not be imposed, nor cruel or unusual punishment inflicted."

The section as amended provides that: "Any person who willfully sets fire to or burns, or causes to be burned, or who aids or procures the burning of any dwelling house, or any kitchen, shop, barn, stable, or other out house within the curtilage of such dwelling house, the property of another; or any person who, with intent to defraud, sets fire to or burns or causes to be burned or who aids or procures the burning of any dwelling house kitchen, shop, barn, stable or other out house within the curtilage of such dwelling house, the property of himself, shall be guilty of arson in the first degree and must, upon conviction thereof, be punished by imprisonment in the penitentiary for not less than two nor more than twenty years; provided said arson shall not produce the death or maiming of any person, but, if the said arson shall produce the death or maiming of any person, the punishment shall be death or imprisonment in the penitentiary for life, at the discretion of the jury." (Italics supplied.) Gen. Acts 1927, pp. 552-554.

The argument here is: "The entire section defines arson in the first degree and prescribes a punishment for that offense; the punishment thereby prescribed is imprisonment from two to twenty years in the penitentiary; however, should the death or maiming of any person be produced by said arson the punishment is death or life imprisonment. The whole law of arson is based on the intent to burn and the intention is not changed even though a person is thereby killed or maimed. The criminal intent is the same whether or not a person is killed; were it not so the defendant would be guilty of murder, mayhem or assault with intent to murder and not an offense of arson, and the punishment prescribed calls for an infliction of a cruel, unusual and excessive punishment, a punishment hitherto unknown to the law. * * * Certainly an infliction of life imprisonment or death on one merely committing the offense of arson, with no intention to maim or kill, although one is accidentally maimed or killed when the offense was committed, constitutes cruel and unusual punishment." (Italics supplied.)

The fault in this argument is that it assumes that a mere accidental death or maiming, though not the direct proximate consequence of the criminal act, would justify the imposition of the extreme penalty. The statute, being highly penal, must be strictly construed, and so construed, the death or maiming of a human being must be the direct proximate consequence of the crime, an essential element of which, under the first division of the statute, is a willful intentional burning, an offense, as at common law, against the habitation or person, importing an intent to harm the occupants of such building. While under the second division of the statute an intent to defraud, importing an intent to injure, is malevolence in kind, if not in degree, with the willful burning of the property of another.

As was observed by the United States Supreme Court in Weems v. United States, 217 U.S. 349, 368, 375, 30 S.Ct. 544, 549, 54 L.Ed. 799, 802, 19 Ann. Cas. 705: "What constitute a cruel and unusual punishment has not been exactly decided. * * * Cooley, in his 'Constitutional Limitations,' apparently in a struggle between the effect to be given to ancient examples and the inconsequence of a dread of them in these enlightened times, is not very clear or decisive. He hesitates to advance definite views, and expresses the 'difficulty of determining precisely what is meant by cruel and unusual punishment.' It was probable, however, he says, that 'any punishment declared by statute for an offense which was punishable in the same way at common law could not be regarded as cruel or unusual, in a constitutional sense.' And he says further that 'probably any new statutory offense may be punished to the extent (italics ours) and in the mode permitted by the common law for offenses of a similar nature."'

However, "the punishment of death" or imprisonment for life is neither unusual nor cruel, within the meaning of the Constitution, where the crime for which punishment is imposed is malevolent and proximately causes the death of a human being, so long as the death inflicted is speedy, and without undue pain or torture. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Weems v. United States, supra; Storti v. Commonwealth, 178 Mass. 549, 60 N.E. 210, 52 L. R. A. 520; 30 A. L. R. 1452, note.

The question presented here is not within the influence of the Federal Constitution. Pervear v. Massachusetts, 5 Wall. 475, 18 L.Ed. 608; O'Neil v. State of Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450; Collins v. Johnston, Warden, etc., 237 U.S. 502, 35 S.Ct. 649, 59 L.Ed. 1071; Smith v. Wayne Probate Judge, 231 Mich. 409, 204 N.W. 140, 40 A. L. R. 515.

The section of the Code as amended is prospective in its operation, and is in no sense an "ex post facto law." It neither makes "a past act a crime, nor increases the punishment for past crimes, nor alters the rules of evidence as to existing crime to the detriment of the accused," and therefore does not violate section 22 of the Constitution. Kring v. State of Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506; Calder & Wife v. Bull & Wife, 3 Dall. (Pa.) 386, 390, 1 L.Ed. 648; Washington v. State, 75 Ala. 582, 51 Am. Rep. 479; Smith's Executor v. Cockrell, 66 Ala. 64.

It is permissible, under the provisions of section 45 of the Constitution of 1901, to amend sections of the Code under a title which refers to the sections to be amended by number, if they relate to a single subject and the matters brought in by the amendment are germane and cognate to the law as expressed in the original section. State ex rel. Troy v. Smith, Auditor, 187 Ala. 411, 65 So. 942; Dunning v. Holcombe, 203 Ala. 546, 84 So. 740; Board of Revenue v. Jansen, 224 Ala. 240, 139 So. 358.

Appellant's...