People ex rel. Georgetown v. Murphy

• Decision Date: 21 May 1903
• Citation: 67 N.E. 226,202 Ill. 493
• Parties: PEOPLE ex rel. GEORGETOWN v. MURPHY, Warden.
• Court: Illinois Supreme Court

202 Ill. 493

67 N.E. 226

PEOPLE ex rel. GEORGETOWN

v.MURPHY, Warden.

Supreme Court of Illinois.

May 21, 1903.

Application by Louis Georgetown, alias Louis Johnson, convicted of rape, for habeas corpus directed to E. J. Murphy, warden of the penitentiary. Denied.

J. Gray Lucas, for petitioner.

BOGGS, J.

This is a motion on behalf of one Louis Georgetown, alias Louis Johnson, that a writ of habeas corpus be issued on his original petition filed in this court. It appears from the petition that said Louis Georgetown was tried before the court and a jury in the criminal court of Cook county at the July term, 1902, on an indictment found at the May term, 1902, of said court, charging him with the crime of rape, and that the jury returned a verdict finding him guilty as charged in the indictment, and fixing the time of his imprisonment in the penitentiary at the term of 25 years; that judgment was rendered upon the verdict, and the petitioner was committed to the penitentiary at Joliet, and is there now confined-illegally, as he contends. The prayer of the petition is that the warden of the penitentiary be required, by a writ of habeas corpus, to bring the petitioner before the bar of this court, and make return to the writ, showing by what authority he detains the petitioner in the penitentiary.

Section 237 of division 1 of the Criminal Code, which was enacted March 27, 1874, defines the crime of rape, and provides that any person adjudged to be guilty of the crime shall be punished by imprisonment in the penitentiary ‘for a term not less than one year, and may extend to life.’ Rev. St. 1874, p. 388. Section 6 of division 14 of the Criminal Code provides that in all cases where the punishment of any act, declared to be an offense by other provisions of the Code, shall be by confinement in the penitentiary, the jury, if the case shall be tried before a jury, shall say in their verdict for what time the offender shall be confined. Id. 412. Such were the statutory provisions when the act providing for a system of parole was adopted, June 15, 1895. 1 Starr & C. Ann. St. 1896, p. 1414, par. 646. Section 1 of that act, as then adopted, provided that every person over the age of 21 years, who should be convicted of any crime (except treason or murder) which, under the provisions of the Criminal Code, was punishable by imprisonment in the penitentiary, should be sentenced to the penitentiary, but that the court so imposing the sentence should not fix or limit the duration of the imprisonment, and that the term of imprisonment of any such person should not exceed the maximum, or be less than the minimum, term provided by the statute for the crime for which the person was convicted, and that such convict, under such indeterminate sentence, should be entitled to the benefit of other provisions of the act relating to the parole or release of such offenders. By section 1 of an act approved April 21, 1899, p. 142, as amended by act May 10, 1901, p. 146 (4 Starr & C. Ann. St. 1902, p. 432, par. 220), the crime of rape and that of kidnapping were, together with the crimes of treason and murder, excepted from the operation of the said section 1 of the act providing for a system of parole.

The contention of the petitioner is that by the adoption of section 1 of the act of 1895, providing for a system of parole, by which section it was provided that all crimes punishable by imprisonment in the penitentiary, except treason and murder, should be punished by indeterminate sentences in the penitentiary, said section 6 of division 14, which authorizes juries who should find persons to be guilty of any such offenses to fix the time of the imprisonment of such persons in the penitentiary, was repealed, and no longer constituted a part of the Criminal Code of the state, and that thereafter the only authority for the punishment of a person convicted of the crime of rape was said section 1 of the parole act, which provided for an indeterminate sentence for such offenders; that the adoption of the act of 1899, removing the crime of rape from the operation of said section 1 of the parole act, did not operate to revive section 6 of division 14 of the Criminal Code, which, as the petitioner claimed, was repealed by the said parole act, but left the Criminal Code without any provision for the imprisonment in the penitentiary of any person convicted of the crime of rape, either by a fixed or indeterminate sentence. Hence it is the view of the petitioner that he is confined in the said penitentiary without warrant or authority of law. The error of this position is in the view that the adoption of the parole act worked the repeal of said section 6 of division 14 of the Criminal Code. The intent to repeal section 6 of division 14 of the Criminal Code is not expressly declared in the parole act, and repeals by implication are not favored, and are never declared unless the later act cannot be reconciled with the former. If the later act can be construed as a modification or exception to the earlier one, that course is to be followed, and both acts regarded as subsisting enactments. The repeal, by implication, of a statute by a subsequent enactment, will not be decreed if it can be avoided by...