Murphy v. Commonwealth

• Decision Date: 03 January 1899
• Parties: MURPHY v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 264

52 N.E. 505

MURPHY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1899

COUNSEL

Brandeis, Dunbar & Nutter, for plaintiff in error.

J.M Hallowell, Asst. Atty. Gen., for the Commonwealth.

OPINION

MORTON J.

This is a petition for a writ of error to reverse a sentence of the superior court for the county of Essex, by which the petitioner is confined in the state prison. The plea is "in nullo est erratum," and therefore admits the facts well assigned in the petition. Bodurtha v Goodrich, 3 Gray, 508, 512; Conto v. Silvia, 170 Mass. 152, 49 N.E. 86. From those, and from the record of the superior court, it appears that the offenses of which the petitioner was convicted were committed between July 19, 1892, and November 17, 1893, but that he was sentenced under St.1895, c. 504, which took effect on the 1st day of January, 1896, and which provides in section 1 that "when a convict is sentenced to the state prison otherwise than for life or as an habitual criminal the court imposing sentence shall not fix the term of imprisonment but shall establish a maximum and minimum term for which said convict shall be held in said prison. The maximum term shall not be longer than the longest term fixed by law for the punishment of the offense of which he is convicted and the minimum term shall not be less than two and one half years." The petitioner was indicted under Pub.St. c 203, § 40, and was found guilty on 63 counts, each of which, except in a few instances, alleged the value of the property stolen to be more than $100. The penalty is prescribed in section 20 of the same chapter, and is imprisonment in the state prison not exceeding five years, or fine not exceeding $600 and imprisonment in the jail not exceeding two years, if the value of the property stolen exceeds $100. The maximum sentence imposed in the present case was not more than 15 years, and the minimum not less than 10. The maximum term was therefore only a small fraction of that authorized by law, and it is agreed that it probably does not exceed the sentence which would have been imposed before the passage of St.1895, c. 504. The error assigned is that the sentence and the commitment pursuant to it were wholly unauthorized and void, because the statute under which the sentence was imposed was ex post facto, and contrary to section 10, art. 1, of the constitution of the United States, and to article 24 of the declaration of rights of the constitution of Massachusetts.

The statute was considered by this court in Com. v. Brown, 167 Mass. 144, 146, 45 N.E. 1, and again in Oliver v. Oliver, 169 Mass. 592, 48 N.E. 843. It was also before the court in Com. v. Crowley, 168 Mass. 121, 46 N.E. 415. In Com. v. Brown, the court says that it sees no reason why the statute should not be construed to apply to all sentences in the cases referred to in it, passed after it went into effect. But it is evident that the attention of the court was directed more to the effect upon the constitutionality of the statute of the feature of indeterminate sentences than to other matters. The fact that the statute might interfere with his rights or privileges in regard to a permit to be at liberty, and was therefore objectionable as ex post facto, was not suggested in the defendant's brief. In Oliver v. Oliver, the point decided was that a sentence imposed under the statute in question must be regarded as a sentence for the maximum term, and not for the minimum or any intermediate term. The point now raised was not involved nor considered in that case. Com. v. Crowley followed Com. v. Brown. There was in the opinion no discussion of the statute, and the motion in arrest of judgment did not aver that the statute was unconstitutional because of its interference with defendant's right to a permit to be at liberty for good conduct, under Pub.St. c. 222, § 20, or otherwise; and an examination of defendant's brief shows that the ground on which it was contended that the statute was unconstitutional was the indeterminate feature of the sentences. This had been fully considered and disposed of in Com. v. Brown, and hence a reference to that case was all that was necessary. We discover nothing in either of these cases which precludes us from examining the question now presented. The statute was also considered by the United States circuit court of the first circuit when this plaintiff was before it recently on a petition for a writ of habeas corpus, which it was led to deny, and to leave the petitioner to his writ of error, largely, as we infer, on account of the views concerning the statute which this court was supposed to have expressed in the two cases of Com. v. Brown and Oliver v. Oliver, referred to above. In re Murphy, 87 F. 549.

We have already quoted section 1 of the act. By section 2 it is provided that, at any time after the expiration of the minimum term, the commissioners of prisons may issue a permit to the convict to be at liberty on such terms and conditions as they may deem best, and may revoke the permit at any time previous to the expiration of the maximum term. The permit shall not be issued without the approval of the governor and council, or unless the commissioners shall be of the opinion that the convict will lead an orderly life if set at liberty. Other provisions contained in the act were taken from St.1884, c. 152,§§ 1, 2, which will be referred to later. The statutes applying to the petitioner's case which were in force when he committed the offenses of which he was convicted are Pub.St. c. 222, §§ 20-22, and St.1884, c. 152. There were and are statutes relating to the issue of permits to persons confined for drunkenness in jails, houses of correction, or other places under the jurisdiction of the county commissioners, or in the county of Suffolk under that of the board of directors of public institutions, and who have reformed, and also to persons imprisoned in the reformatory prison for women, who have reformed. But those are not applicable to this case. Pub.St. c. 222, § 20, provides that every officer in charge of a prison or other place of confinement shall keep a record of each person whose term is not less than four months, and "every such prisoner whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment shall be entitled to a deduction from the term of his imprisonment to be estimated as follows" (stating it). Later in the section it is provided that "each person who is entitled to a deduction shall receive a written permit to be at liberty during the time thus deducted upon such terms as the board granting the same shall fix." The permits are to be issued to prisoners in the state prison by the commissioners of prisons, and they "may at any time revoke the same, and shall revoke it when it comes to their knowledge that the person to whom it was granted has been convicted of an offense punishable by imprisonment." St.1884, c. 152, § 1, provides that if the holder of a permit shall violate any of its terms or conditions, or any law of this commonwealth, "such violation shall of itself make void such permit." Section 2 provides that, when any permit has been revoked or has become void, the board granting it may cause the holder of it to be arrested and returned to the place in which he was confined, and when so returned he "shall be detained therein according to the terms of his original sentence," and "the time between his release upon said permit and his return to said place of confinement shall not be taken to be any part of the term of sentence." These provisions are embodied in St.1895, c. 504, and are the ones previously referred to. The other provisions of St.1884, c. 152, are not now material.

From this examination it appears that St.1895, c. 504, differs from the statutes which were in force at the time when the offenses were committed, and that the differences consist--First, in the matter of indeterminate sentences secondly, in providing that the permit shall not be issued till after the expiration of the minimum sentence, and in omitting any provision for deductions for good behavior; and, thirdly, in leaving the issue of the permit to the discretion of the commissioners, and in providing that it shall receive the approval of the governor and council. The petitioner contends that the effect of these differences may be to make the term of imprisonment longer than it would have been under the laws in force at the time the offenses were committed, and to change his position in other respects to his disadvantage, and that therefore the statute is unconstitutional and void. The commonwealth contends that the provisions are in the nature of prison discipline or of penal administration or criminal procedure, and are not therefore open to the objection of being ex post facto. As the term "ex post facto" has been construed, it applies only to penal or criminal matters. The objection to ex post facto legislation consists in the uncertainty which would be introduced thereby into legislation of a penal or criminal character, and the injustice of punishing an act which was not punishable when done, or of punishing it in a different manner from that in which it was punishable when done. But not all retrospective legislation is unconstitutional as being ex post facto. The question in each case is whether it will increase the penalty, or operate to deprive a party of substantial rights or privileges to which he was entitled as the law stood when the offense was committed, or, "in short, in relation to the offense and its consequences, will alter the situation of a party to his disadvantage." Calder v. Bull, 3 Dall. 386; Cummings v. Missouri, 4 Wall. 277; Ex parte...