State v. Carpenter, 7300

• Decision Date: 02 January 1947
• Docket Number: 7300
• Citation: 176 P.2d 919,67 Idaho 277
• Parties: STATE v. CARPENTER
• Court: Idaho Supreme Court

176 P.2d 919

67 Idaho 277

STATE v. CARPENTER

No. 7300

Supreme Court of Idaho

January 2, 1947

Appeal from District Court, Eleventh Judicial District, Twin Falls County; James W. Porter, Judge.

Motion to dismiss appeal denied and conviction affirmed.

Marshall Chapman and Lawrence B. Quinn, both of Twin Falls, for appellant.

Commutation of sentence may be imposed upon the convict without his acceptance and against his consent; in this respect it differs from a pardon to the validity of which acceptance is essential. Biddle v. Perovich, 274 U.S. 480, 47 S.Ct. 664, 71 L.Ed. 1161, 52 A.L.R. 832; In re Charles, 115 Kan. 323, 222 P. 606; 39 Am.Jur. 524, par. 8.

A pardon must be accepted to be effective. In re Prout, 12 Idaho 494, 86 P. 275, 5 L.R.A.,N.S., 1064, 10 Ann.Cas. 199; 39 Am.Jur. 547, § 47.

A parole is distinguishable from a pardon and a conditional pardon and simply provides for a different manner of serving a sentence than by confinement in a prison. State v Goddard, 169 Or. 73, 133 P. 90, Ann.Cas.1916A, 146; Carpenter v. Lord, 88 Or. 128, 171 P. 577 L.R.A.1918D, 674; Ex parte Peterson, 14 Cal.2d 82, 92 P.2d 890.

The presumption of law is in favor of the validity of a marriage (Huff v. Huff, 20 Idaho 450, 118 P. 1080), and the direct testimony of respondent was sufficient to establish prima facie their relation of husband and wife, marriage may be proven by the testimony of one of the parties. Labonte v. Davidson, 31 Idaho 644, 175 P. 588; Mauldin v Sunshine Mining Co., 61 Idaho 9, 97 P.2d 608; In re Estate of Tormey, 44 Idaho 299, 256 P. 535.

Where a criminal act is committed by a married woman in her husband's presence, she is presumed to be acting under his command and coercion, is incapable of committing the crime, and cannot be held guilty therefore. I.C.A. § 17-201, Sub. (7); State v. Miller, 162 Mo. 253, 62 S.W. 692, 85 Am.St.Rep. 498; Davis v. State, 53 Okl.Cr. 85, 7 P.2d 911; Neff v. State, 28 Okl.Cr 448, 231 P. 897, 898; Ferguson et al. v. State, 29 Okl.Cr. 238, 233 P. 497.

The Court failed to clearly and fully instruct the jury as to the essential elements of law constituting defendant's defense to the crime charged in the information and refused so to do, for which failure and refusal appellant is justly entitled to a reversal. (Specification VI to XVI, inclusive.) I.C.A. § 17-201, Subs. (7) and (8); State v. Miller, supra, 162 Mo. 253, 62 S.W. 692, 85 Am.St.Rep. 498; State v. Poulos, 36 Idaho 453, 212 P. 120; State v. Sayko, 37 Idaho 430, 216 P. 1036; Sentell v. State, 61 Okl.Cr. 229, 67 P.2d 466.

Frank Langley, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for respondent.

A convicted defendant who seeks and obtains clemency, the granting of which rests in the discretion either of the trial court or of some executive authority, thereby waives his right of appeal.

This is true in the case of parole. Odom v. State, 8 Okl.Cr. 540, 129 P. 445, 446; State v. Goddard, 69 Or. 73, 133 P. 90, 92, Ann.Cas.1916A, 146 (Dictum); Talkington v. State, 15 Okl.Cr. 83, 175 P. 132.

The same is true where commutation is sought and procured. State v. Mathis, 109 N.C. 815, 13 S.E. 917; West v. State, 11 Okl.Cr. 274, 145 P. 1107.

The rule also applies in case of a procurement of suspended sentence. State v. Tripp, 68 N.C. 150, 83 S.E. 630; State v. Anderson, 208 N.C. 771, 182 S.E. 643, 654.

The same is true where a pardon, commutation or parole is sought from the executive authority while an appeal is pending. Butler v. State, 4 Okl.Cr. 637, 112 P. 758; Barnard v. U.S. 4 Okl.Cr. 638, 112 P. 758; Manlove v. State, 153 Ind. 80, 53 N.E. 385.

And in general, any action after conviction involving acquiescence in the judgment of conviction waives the right of appeal. State v. Brewer, 135 La. 208, 65 So. 111; Note, 138 A.L.R. 1162.

A great majority of courts hold that to constitute a common law marriage there must be a contract of marriage entered into mutually per verba de praesenti, followed by cohabitation. 35 Am.Jur. 198, Sec. 28; 38 C.J. 1316-1320; 39 A.L.R. 539, note; L.R.A.1915E, pp. 23, 24, 33; Lefkoff v. Sicro, 189 Ga. 554, 6 S.E.2d 687, 133 A.L.R. 738; Willis v. Willis, 48 Wyo. 403, 49 P.2d 670, 677; Shepherd & Pierson Co. v. Baker, 81 Mont. 185, 262 P. 887; Smith v. People, 64 Colo. 290, 170 P. 959; Porter v. U.S. 7 Ind.T. 616, 104 S.W. 855.

Givens, Justice. Budge and Miller, JJ., and Sutphen, D. J., concur. Holden, Justice, dissenting.

OPINION

Givens, Justice.

Achsa Shryer and Joan Carpenter were jointly informed against, prosecuted and convicted of carrying hacksaw blades to prisoners to aid their escape, in violation of Section 17-807, I.C.A. ^[1] Joan Carpenter alone has appealed herein.

At the time fixed for the pronouncement of sentence, appellant, through her attorney, applied to the court for leniency under Section 19-2501, I.C.A., as amended by the 1943 S.L. Chap. 14, page 43. ^[2] Whereupon, the court pronounced judgment as follows: "It is thereupon ordered, adjudged and decreed, that the said Achsa Shryer and Joan Carpenter are guilty of Carrying to Prisoner things to aid Escape and that they each be punished by imprisonment in the Penitentiary of the State of Idaho, for the term of not less than one year nor more than five years, but that the sentence be commuted, and that they each be confined in the Twin Falls County Jail for a period of four months."

The State moved to dismiss the appeal because appellant, by seeking and accepting the commutation of sentence, forfeited and waived her right of appeal.

Conceding that acceptance of executive pardon or parole or judicial parole has been held to either limit or annul appellant's right of appeal from the judgment of conviction, Brooks v. State, 51 Ariz. 544, 78 P.2d 498, 117 A.L.R. 929, 138 A.L.R. 1102, herein there was merely a reduction of the sentence, leniency having been requested by the jury and urged by appellant.

There must be a valid judgment of conviction to support a valid penalty. The entire pronouncement was at one time and all part of one judicial transaction and no authority has been presented that holds under this precise situation appellant has been, and no valid reason has been suggested why appellant should be, deprived of the right to question the validity of the conviction.

Neither reason nor justice supports or authorizes the proposition that a defendant by seeking or securing a minimal sentence jeopardizes or sacrifices the right to test by appeal the legality of his conviction, an essential condition precedent to sentence. State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061, 138 A.L.R. 1154. A contrary holding would mean a defendant could not seek a light sentence, even though recommended by the jury, but must remain silent when sentence is pronounced lest he suffer the loss of appeal on the merits, however erroneous the trial or complete his innocence. Appellant does not question the sentence as such, and no assignment of error challenges the sentence in any particular, hence whether the court abused its discretion in commuting the sentence is not before us. The motion to dismiss the appeal, therefore, is denied.

The general circumstances surrounding the offense of which appellant was convicted were that one Clyde Pease and Ace Jacobson were being held in the City Jail in Twin Falls on a felony charge for California authorities. Appellant had been arrested previously with Pease on a vagrancy charge and incarcerated. She was released upon payment by her of her fine. She thereafter visited the jail and claimed Jacobson threatened her if she did not secure and bring to them hacksaw blades, which threats appellant contends her claimed common-law-husband Pease told her she had better comply with. She purchased the blades and with Achsa Shryer, formerly Jackie Smith, went that evening to the jail. Each woman said the other put the blades through a window or hole in the wall into the City Jail as directed. The blades were discovered and four of the bars of one of the windows in the cell block were sawed through and bent up. The arrest of appellant and Achsa Shryer, Aces' acquaintance, and self-accusatory admissions followed.

Appellant in numerous assignments of error contends the evidence is insufficient to sustain her conviction, particularly in this; that she and Clyde Pease were married and she aided in procuring and passing the hacksaw blades into the City Jail where he and Ace Jacobson were confined, under threats made by Jacobson and so affirmed by her husband as to absolve her from criminal complicity by reason of Section 17-201, subd. 7, I.C.A.; ^[3] and that the court erred in refusing certain requested responsive instructions.

The question of conjugal status and to what extent, if any, appellant acted under threats vicariously acquiesced in by Pease, or was dominated by his commands or coercion, were questions of fact to be determined by the jury. State v. Hendricks, 32 Kan. 559, 4 P. 1050 at 1054. Appellant testified in open court she participated in purchasing and passing the hacksaw blades into the jail and the evidence is of such a nature as to support the jury in rendering the verdict.

Section 17-201, subd. 7, supra, differs from the common law, 41 C.J.S., Husband and Wife, p. 717, § 222, note 20. Obviously, therefore, cases interpreting or applying the common law or differing statutes are not pertinent.

The instructions given by the court were fully favorable to appellant and sufficiently, substantially and adequately covered these phases of the controversy. ^[4] State v. Sayko, 37 Idaho 430, 216 P. 1036, and 71 A.L.R. 1116.

Hence there was no error in rejecting the requested instructions. State v. Fleming, 17 Idaho 471, at page 489, syl. 9, 106 P. 305; State v. Reel, 19 Idaho 463,...