State v. Page

Citation57 P. 514,60 Kan. 664
Decision Date10 June 1899
Docket Number11382
CourtUnited States State Supreme Court of Kansas

Decided January, 1899.

Appeal from Pawnee district court; J. E. ANDREWS, judge.

Judgment affirmed.

A. A Godard, attorney-general, V. H. Grinstead, county attorney and T. S. Haun, for The State.

G. Polk Cline, for the appellant.



This is an appeal from a conviction of the offense of what is commonly designated as "statutory rape"; that is, of carnally knowing a female under eighteen years of age, without force and not against her will. Several claims of error are made: (1) That the court lost jurisdiction to try the case because there had been a continuance of it from one term to the succeeding one when the defendant was not present in court; (2) that a comparison of the testimony given upon the preliminary examination and upon the trial proper showed that the defendant was convicted of an offense which the prosecutrix did not have in her mind when she swore to the complaint and about which she did not testify upon the preliminary trial, wherefore the defendant did not have a preliminary trial for the offense of which he was convicted; (3) that the testimony showed that the offense of which the defendant was convicted was barred by the statute of limitations; (4) that two like offenses were testified to under an information containing a single count and charging but a single offense, and between which the state was not required to elect for purposes of conviction; (5) that the court erred in certain of its instructions; (6) that prejudicial evidence was erroneously admitted. We have examined all of these claims of error. None of them possesses any merit whatever. They are all predicated upon either partial or mistaken views of the case.

It would serve no useful purpose to con over the record for the purpose of showing wherein counsel for appellant has fallen into error. One question, however, deserves to be noticed. It raises the constitutional validity of the act establishing the state industrial reformatory and providing for the punishment of youthful offenders in that institution. (Gen. Stat. 1897, ch. 134.) The judgment of conviction was in accordance with the provisions of that act. It reads as follows: "That said William G. Page be and is hereby sentenced to confinement in the Kansas State Industrial Reformatory, there to remain until discharged by the authorities of said reformatory according to law." Section 11 of the act in question reads as follows:

"Any person between the ages of sixteen and twenty-five who shall be convicted for the first time of any offense punishable by confinement in the state penitentiary may in the discretion of the trial judge be sentenced either to the state penitentiary or to the Kansas State Industrial Reformatory; and any person who upon such conviction shall be sentenced to imprisonment in the Kansas State Industrial Reformatory shall be imprisoned according to this act, and not otherwise, and the courts of this state imposing such sentence shall not fix a limit of duration thereof. The term of such imprisonment of any person so convicted and sentenced shall be terminated by the managers of the reformatory as authorized by this act; but such imprisonment shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced."

Several sections succeeding this outline a system of punitory and reformatory discipline, the administration of which is confided to a board of managers. This system among other things provides for a record of merits and demerits in the inmates, and for parole privileges to those of exemplary conduct. Section 20 reads as follows:

"When it appears to the said managers that there is a strong or reasonable probability that any prisoner will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society, then they shall issue to such prisoner an absolute release from imprisonment. But no other petition or other form of application for the release of any prisoner shall be entertained by the managers. Nothing herein contained shall be construed to impair the power of the governor to grant a pardon or a commutation of sentence in any case."

The punishment inflicted upon an offender sentenced to the reformatory under this act is the kind commonly spoken of as "indeterminate," and it is assailed by counsel for appellant as violative of that constitutional provision which vests judicial power in the courts, and also that one which vests the pardoning power in the governor. Similar acts have been for the same reason drawn into question in other courts but have been approved by a great preponderance of the authorities, and by a cogency and strength of reasoning entirely satisfactory to us. (The State, ex rel. Attorney-general, v. Peters, 43 Ohio St. 629, 4 N.E. 81; Conlon's Case, 148 Mass. 168, 19 N.E. 164; Miller v. The State, 149 Ind. 607, 49 N.E. 894; The People, ex rel., v. State Reformatory, 148 Ill. 413, 36 N.E. 76; George v. The People, 167 Ill. 447, 47 N.E. 741; contra, People v. Cummings, 88 Mich. 249, 50 N.W. 310.)

It is undeniably true that the sole power to provide for the punishment of offenders belongs to the legislature. It alone has the power to define offenses and affix punishments. Its authority in these respects is exclusive and supreme. Courts are empowered only to ascertain whether an offense has been committed, and if so to assess punishment, within the terms of the law, for its commission. It cannot be doubted that the legislature, in virtue of its exclusive and sovereign authority over such matters, may affix conditions to the punishment it ordains, and among other things may set to it limits of duration, terminable upon conditions. To these conditions the courts in assessing punishment must conform. Into every sentence of conviction the terms and conditions which beforehand the legislature had prescribed enter as much as though they were written into and made a formal part of the record of sentence. Into the before-quoted sentence of conviction the law wrote, as provisos and as constituent parts of it, sections 11 and 20 of the act establishing the state industrial reformatory. (Miller v. The State, supra.) It is not, therefore, an interference with judicial authority, nor an assumption of judicial power, for the supervisors of penal institutions to administer the very conditions of punishment or clemency which the law prescribed and itself wrote into the judge's sentence. Where conditions of punishment are beforehand prescribed, and form constituent parts of the sentence of conviction, it is not an assumption of judicial power for an administrative officer, acting within the law and the terms of the sentence, to take upon himself the task of ascertaining whether the conditions have been observed.

Under the statute quoted, if rightly construed, the sentence of the appellant was to the maximum punishment, so far as duration was concerned, which the law prescribed for the offense of which he was...

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