Orme v. Rogers

• Decision Date: 17 October 1927
• Docket Number: Civil 2592
• Citation: 32 Ariz. 502,260 P. 199
• Parties: LIN B. ORME, C. O. CASE, JOHN W. MURPHY, as Members of the Board of Pardons and Paroles, Appellants, v. JACK J. ROGERS, Appellee
• Court: Arizona Supreme Court

260 P. 199

32 Ariz. 502

LIN B. ORME, C. O. CASE, JOHN W. MURPHY, as Members of the Board of Pardons and Paroles, Appellants, v. JACK J. ROGERS, Appellee

Civil No. 2592

Supreme Court of Arizona

October 17, 1927

APPEAL from a judgment of the Superior Court of the County of Maricopa.Joseph S. Jenckes, Judge.Judgment reversed and cause remanded with instruction to deny writ.

Mr John W. Murphy, Attorney General, and Mr. Frank J. Duffy and Mr. Earl Anderson, Assistant Attorneys General, for Appellants.

Mr Edward J. Flanigan, for Appellee.

OPINION

LOCKWOOD, J.

In June, 1923, Jack J. Rogers was convicted of the crime of uttering a fictitious check.He was sentenced to serve not more than five nor less than four years in the state prison commencing with the eighteenth day of June.On September 23d 1926, Rogers through his attorneys filed a petition in the superior court of Maricopa county for a writ of mandamus to compel the appellantsLin B. Orme, C. O. Case and John W. Murphy, members of the board of pardons and paroles, to permit him to appear before the board to ask for a parole.The petition sets forth that, under certain provisions of the statutes, he was entitled to a reduction of his sentence for good conduct, and that such credit should be applied to his minimum sentence, and that he was therefore entitled to appear and urge his right to a parole on and after June 3d, 1926.The answer to the order to show cause set up that the credit for good conduct had been deducted from the maximum term of his sentence, so that it would expire on the seventeenth day of January, 1927, while his minimum without any time deducted would expire on the seventeenth day of June of that year.Upon these pleadings and facts the court found as a conclusion of law that the appellee was entitled to have his good conduct time allowance applied to his minimum sentence, and that it was the duty of the board of pardons and paroles to allow him to appear before them to apply for a parole at any time after the eighteenth day of June, 1926.The writ of mandamus was issued upon this finding and appellants have brought the matter before us for review.

There is but one question of law for our consideration, and that is whether the deduction provided for by paragraph 1448, Penal Code of 1913, should be credited on the maximum period of sentence or upon its minimum.We have passed on the precise question involved in this appeal in the case of Clark v. State,23 Ariz. 470, 204 P. 1032, and indirectly though not specifically, on the same question in State v. Superior Court,30 Ariz. 332, 47 A.L.R. 401, 246 P. 1033.Notwithstanding this fact, we shall re-examine the case as though it were a matter of first impression.

It is apparent to us that our various penal statutes were adopted under the influence, conscious or unconscious, of a definite theory of criminology, while our administrative authorities have frequently attempted to interpret these statutes on the basis of a different theory, and from this conflict much of our present confusion has arisen.A proper interpretation of the statutes requires that we understand these theories, and a brief discussion of the history and spirit of penal legislation in general is therefore advisable.

Crime may be defined logically as any violation of the legally established order, while punishment is the penalty for such transgression of the law.When legislation first arose in regard to crime, it was generally considered that the infliction of punishment was the right of the individual adversely affected by the crime, and not particularly that of the state, and the spirit of private vengeance on behalf of the injured party was at the basis of our laws.The old Mosaic doctrine of "an eye for an eye, and a tooth for a tooth," the right given the victim under the Roman law in certain cases of theft to slay the thief, the Germanic doctrine of the blood feud -- all were illustrations of a period of society when this theory of punishment was almost universal.Gradually, however, as the state grew stronger there arose the idea that the real crime was not the invasion of the rights of the individual, but the breach of the rules laid down by the state for the preservation of peace, and, while the injured party still retained the right of reparation as a civil action, punishment as such was administered at the instance of and to vindicate the rights and dignity of the collectivity, the state itself.

But when this standard is once accepted, the character of punitive legislation depends essentially on the view taken as to the moral responsibility of the offender.The great conflict in our laws attempting to suppress crime in the past two hundred years has been caused by the prevalence, from time to time, of first one idea and then another on this point.The older school of thought, commonly called the classical, was based on the philosophical concept of the freedom of the will.As was well said by one of the greatest of modern writers on criminology:

"It was presumed that those guilty of the same crime, theft, murder, etc., must have been equally free agents and consequently equally responsible.Every crime was assumed to involve a like moral freedom and to imply a like responsibility. . . .The status of every man in resolving upon the same act is parallel.He has the choice of two courses, to act or to refrain.The responsibility varies, not with the measure of freedom, but with the gravity of the act in question.It is not the place of the law to consider anything but the social and material seriousness of the crime.All guilty of the same crime present the same responsibility.Hence there is no pertinence in taking into account the age, no advantage in considering the personality.Ignoring such considerations, the deed alone is to be dealt with. . . ."Saleilles, Individualization of Punishment, pp. 55, 56.

This school of thought is reflected in nearly all the criminal statutes prior to the first half of the nineteenth century.Each particular offense had a definite penalty annexed thereto, and the judge had no right to consider anything but whether or not the individual had committed the act in question.Age, previous record, provocation had nothing to do with the case.The individual had of his own free will broken the rule -- the penalty was fixed, and he must pay it.This system had two merits, all were treated alike, and the defendant was not subject to the arbitrary whim of the trial judge in the imposition of sentence.But the equality was only in name, for the equality that justice demands is an equality of treatment for the same degree of criminology, and how can a comparison be established between the recidivist, hardened to prison life, and the first offender, upon contact with his humiliating fate; between one accustomed to the amenities of life, to whom the prison routine must be intolerable, and the poor fellow without shelter, who has come to look upon jail, and even the penitentiaries, as dispensers of hospitality, offering an assured living and a shelter for the unemployed?However this may be, such was the system, and it may be summarized in these words: The punishment for the same crime should be the same because the moral responsibility is the same.

This theory to the ordinary man, on first thought, is plausible, simple and easy to apply.Here is an injustice to be repaired, and there is a punishment that will make it good.But as humanity has evolved, and along with its other evolution the sense of justice has become more developed, it was realized that the old classical system was unjust, and as a consequence a new theory, the so-called neo-classic, came into vogue.It, too, was based fundamentally upon the doctrine of responsibility for one's acts, but recognized that while man, considered abstractly, enjoys perfect freedom to commit an act or refrain therefrom, yet such freedom may be affected by heredity, education and countless other circumstances and that the degree of responsibility depends upon the actual, not the theoretical, freedom exercised by the individual.Starting with this premise, that is, that freedom and individual responsibility are relative and individual, the theory of punishment was partially changed, and it was held that the penalty for the crime should be graded in proportion to the amount of the freedom and therefore the responsibility.This theory was still, however, based on responsibility and freedom of the will, and the punishment therefore was intended to act directly upon the offender by making the unpleasant consequences of his breach of law so great that his will would be properly exercised if the temptation again presented itself, and indirectly by example on all others who might find themselves under similar temptation.

But many students of criminology were not better satisfied with the reasoning and conclusions of the neo-classical school than of the original from which it sprang, and a third school has arisen.Philosophically speaking, it rests upon what is commonly called the determinist theory of life, which denies the freedom of the will.Practically speaking, its position, at least if carried to its logical conclusion, is that we do what we do not because we will, but because we must; that our acts in any given set of circumstances are definitely determined...