State v. Smith

• Decision Date: 15 March 1910
• Citation: 56 Or. 21,107 P. 980
• Parties: STATE v. SMITH.
• Court: Oregon Supreme Court

107 P. 980

56 Or. 21

STATE v. SMITH.

Supreme Court of Oregon

March 15, 1910

Appeal from Circuit Court, Marion County; George H. Burnett, Judge.

A.B Smith, indicated as A.C. Smith, was convicted of assault and robbery, being armed with a dangerous weapon, and he appeals. Reversed, and accused discharged from custody.

John A. Carson and W.M. Kaiser (Thomas Brown and M.E Pogue, on the brief), for appellant.

Chas L. McNary (John H. McNary, Geo. G. Bingham, and W.C. Winslow on the brief), for the State.

KING J.

July 7, 1909, the defendant, A.B. Smith, was indicted, charged with the crime of assault and robbery, being armed with a dangerous weapon, committed on April 27, 1909, and on October 20th following he was tried and convicted; the jury recommending him to the mercy of the court. After denying a motion in arrest of judgment, the court, on October 23d, sentenced defendant to "be imprisoned in the Oregon State Penitentiary, without limitation of time," being what is known as an indeterminate sentence, under an act which became a law in 1905; the effect of which is that a person may be held in custody in the penitentiary not less than 1 nor more than 20 years, depending upon his conduct during incarceration and executive clemency.

The only error assigned, demanding attention, grows out of the question whether, at the time of the trial and sentence of the accused, there was any law in this state under which the sentence could be imposed. The law covering the crime charged, in force when the offense was committed, reads: "If any person being armed with a dangerous weapon shall assault another with intent, if resisted, to kill or wound the person assaulted, and shall rob, steal or take from the person assaulted any money or other property which may be the subject of larceny, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than five nor more than twenty years." B. & C. Comp. § 1768. This section was amended by an act of the Legislative Assembly, filed in the office of the Secretary of State February 9, 1909, which, under section 28, art. 4, Const., became a law 90 days later and is as follows: "That section 1768 of Bellinger and Cotton's Annotated Codes and Statutes of Oregon, be and the same hereby is amended so as to read as follows: 'Sec. 1768. If any person being armed with a dangerous weapon shall assault another with intent, if resisted, to kill or wound the person assaulted, and shall rob, steal or take from the person assaulted any money or other property which may be the subject of larceny, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary for a period of not less than ten years or during the natural life of such person so convicted; provided, however, that the minimum punishment herein provided shall be exercised only in those cases where in the judgment of the court leniency should be shown.' " Gen.Laws 1909, p. 70, § 1.

We are therefore confronted with the anomalous situation of the accused having been tried and convicted of an offense committed while section 1768 of the Code was in force, but which was, at the time of the trial and sentence, displaced by that part of the act of 1909 above quoted. Yet the person convicted was not sentenced under the provisions of either act, but under the act of 1905 (Gen.Laws 1905, p. 318, § 1), which manifestly does not apply to crimes of this class; for the right to impose the sentence there provided is expressly limited to cases where the penalty may not exceed 20 years, while the maximum penalty fixed by law, for the offense of which defendant was convicted, in force when the sentence was imposed, was imprisonment for life. If common-law offenses were recognized in this state, the legal difficulties presented would be easy of solution. For example: In Connecticut, in 1798, a case analogous to the one at bar was before the appellate court, in which the defendant was found guilty of burglary under an old statute, which at the time of his conviction and sentence had been repealed. A motion was made in arrest of judgment, but it was held that, as burglary was an offense at common law, a statute declaring the punishment was enforceable, notwithstanding the statute under which the crime was committed had been repealed. Rex v. Vernon, Root's Rep. 59. But the rule there applied cannot be invoked in this instance, for it is well settled that no common-law offenses are recognized in this jurisdiction; hence, in order to make the enactments of the legislative department enforceable it is necessary to specify, by statute, crimes for which convictions may be secured and punishments therefor prescribed. State v. Vowels, 4 Or. 324; State v. Gaunt, 13 Or. 115, 9 P. 55; State v. Nease, 46 Or. 433, 80 P. 897; State v. Ayers, 49 Or. 66, 88 P. 653, 10 L.R.A. (N.S.) 992, 124 Am.St.Rep. 1036. It will be observed that while the act, in force at the time of the commission of the crime charged, fixed the minimum sentence at 5 years', and the maximum at 20 years', imprisonment, the amendment of 1909 changed the law, making the minimum sentence 10 years, and the maximum life imprisonment, and that the 1909 enactment expressly declares that section 1768 of the Code shall be amended as there provided, and contains no saving clause.

It is established, by the undoubted weight of authority, that where a portion of an act is amended "so as to read" in a prescribed manner the amended section is entirely repealed, and all matters contained in the original section, and not incorporated in the amendment, are annulled. Suth.Stat. Const. §§ 465, 470; End.Int.Stat. §§ 196, 239; Sedgwick, Stat. & Const.Law, 191, 599; State ex rel. v. Simon, 20 Or. 365, 370, 26 P. 170; Portland v. Cook, 48 Or. 550, 557, 87 P. 772, 9 L.R.A. (N.S.) 733; Blakemore v. Dolan, 50 Ind. 194; State v. Campbell, 44 Wis. 529; Goodno v. Campbell, 44 Wis 529; Goodno v. City, 31 Wis. 127; Wilson v. Ry. Co., 64 Ill. 542, 16 Am.Rep. 565; People v. Tisdale, 57 Cal. 104; People v. Hiller, 113 Mich. 209, 71 N.W. 630. But whether the amendment in question entirely repeals section 1768, or only the portion thereof with reference to the penalty, the fact remains that the change made therein provides an additional punishment for the crime there specified. In discussing this principle Judge Cooley observes: "As the constitutional provision is enacted for the protection and security of accused parties against arbitrary and oppressive legislative action, it is evident that any change in the law which goes in mitigation of the punishment is not liable to this objection. But what does go in mitigation of the punishment? If the law makes a fine less in amount, or imprisonment shorter in point of duration, or relieves it from some oppressive incident, or if it dispenses with some severable portion of the legal penalty, no embarrassment would be experienced in reaching a conclusion that the law was favorable to the accused, and therefore not ex post facto. But who shall say, when the nature of the punishment is altogether changed, and a fine is substituted for the pillory, or imprisonment for whipping, or imprisonment at hard labor for life for the death penalty, that the punishment is diminished, or at least not increased by the change made? What test of severity does the law or reason furnish in these cases? And must the judge decide upon his own view of the pain, loss, ignominy, and collateral consequences usually attending the punishment? or may he take into view the peculiar condition of the accused, and upon that determine whether, in his particular case, the punishment prescribed by the new law is or is not more severe than that under the old?" Cooley's Const. Lim. (6th Ed.) 321.

While there is abundant authority for holding that a person convicted of a crime cannot complain of a change in penalty, if the punishment is thereby reduced or more favorable to him than under the act amended the adjudications are uniform, and almost without limit, in support of the doctrine that any additional or increased penalty, as in the case before us, is ex post facto, and, accordingly, within the inhibition of section 9, art. 1, of the federal Constitution, and of section 21, art. 1, of the Constitution of our state, and cannot be enforced as to an offense committed prior to the taking effect of the act making such change in the penalty. Mr. Justice Moore, speaking for this court in Portland v. Cook, 48 Or. 550, 557, 87 P. 772, 774 (9 L.R.A. [ [[N.S.] 733), states the rule thus: "The repeal of a law imposing a penalty will prevent any trial or judgment for an offense committed against it while it was in force, unless the annulling act expressly stipulates to the contrary or the penalty may be inflicted under some existing general law"--citing End.Int.Stat. § 478. And in People v. Hiller, 113 Mich. 212, 71 N.W. 631, it is held: "The only exceptions to the rule herein stated are where the state, enacting the new legislation has a general law, which operates as a saving clause, or where the new legislation indicates very clearly that its provisions are to apply only to offenses thereafter committed. It was doubtless competent for the Legislature to continue the penalty for offenses committed under the old law, after the new law took effect, by attaching to the new law a saving clause, or by indicating in the law itself that its provisions were to attach only to offenses committed after the law became operative. ***"

None of the conditions adverted to in either of the above cases appear in this instance; from which it follows that the penalty prescribed in the act, as to this defendant, is ex post facto, and the penalty provided in the act in force at the time of the...