State v. Tyree

• Decision Date: 05 November 1904
• Docket Number: 13,933
• Parties: THE STATE OF KANSAS v. JOHN TYREE
• Court: Kansas Supreme Court

78 P. 525

70 Kan. 203

THE STATE OF KANSAS v. JOHN TYREE

No. 13,933

Supreme Court of Kansas

November 5, 1904

Decided July, 1904.

Appeal from Barber district court, on rehearing; PRESTON B. GILLETT judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Indeterminate-sentence Law Held Ex Post Facto. T. was convicted of a felony committed before the passage of chapter 375, Laws of 1903, commonly called the "indeterminate-sentence" law, but was sentenced to the penitentiary under that act. The law prescribing the punishment for the offense when it was committed provided for a scale of credits to be given for good behavior. The act of 1903 contains no such provisions. Held, that the latter act, as to T., is ex post facto.

2. PRACTICE, SUPREME COURT--Order to Resentence upon Reversal. Upon the reversal of a judgment of sentence in a criminal case this court is authorized by section 5729 General Statutes of 1901, to remand the cause with instructions to the court below to set aside the erroneous sentence and resentence the appellant.

C. C. Coleman, attorney-general, and J. N. Tincher, county attorney, for The State.

Samuel Griffin, and Seward I. Field, for appellant.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

The appellant was convicted of a felony and sentenced to the penitentiary under the indeterminate-sentence act of 1903. The crime of which he was convicted was committed before the enactment of the law, but his trial, conviction and sentence were had thereafter. Appellant comes to this court asking that the sentence be set aside and he be discharged and set at liberty because, as to him, the law under which he was sentenced is ex post facto.

The penalty prescribed when the offense was committed was confinement in the penitentiary at hard labor for not less than five, nor more than twenty-one, years. Section 1 of chapter 375, Laws of 1903, under which the appellant was sentenced, reads:

"Every person convicted of a felony or other crime punishable by imprisonment in the penitentiary . . . shall be sentenced to the penitentiary, . . . but the court imposing such sentence shall not fix the limit or duration of the sentence, but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less that the minimum term provided by law for the crime for which the person was convicted and sentenced, the release of such person to be determined as hereinafter provided."

Following this, provisions are found authorizing the prison board to establish rules and regulations under which prisoners may be paroled after the expiration of the minimum term fixed by law for the offense committed, and providing that after the prisoner has been on parole six months the warden shall, if he be satisfied that the prisoner will remain a good citizen and his liberty not be incompatible with the welfare of society, certify such fact to the prison board, which board shall consider the case and perform the acts (all of which are set out in the provisions of the act) necessary to secure a final discharge of the prisoner from further liability under the sentence.

The term ex post facto applies only to penal or criminal statutes. Every retrospective penal or criminal statute is not necessarily ex post facto. If the law under which the appellant was sentenced mitigates the punishment prescribed in the statute in existence when the offense was committed it would not be ex post facto, although retrospective. (Commonwealth v. Wyman, 12 Cush. 237; Commonwealth v. Gardner, 11 Gray 438; Dolan v. Thomas, 12 Allen 421; In re Petty, 22 Kan. 477; Turner v. The State, 40 Ala. 21.) A retrospective criminal or penal law that does not deprive the party of some constitutional right to which he was entitled under the law at the time the offense was committed, or does not alter his situation to his disadvantage, is not ex post facto.

Section 10 of article 1 of the constitution of the United States provides:

"No state shall . . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility."

The first time this question was presented to the supreme court of the United States was in Calder et wife v. Bull et wife, 3 Dall. 386, 1 L.Ed. 648. At page 390 Justice Chase defined ex post facto laws to be:

"(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was when committed; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed; (4) every law that alters the legal rules of evidence, and receives less, or different, testimony than the law required at the time of the commission of the offense, in order to convict the offender."

The appellant has not specifically pointed out any provision of the law under which he was sentenced that increased the penalty, or deprived him of any constitutional rights or privileges to which he was entitled under the law as it stood when the offense was committed, or that in any way altered his situation to his disadvantage. A comparison of the act under which he was sentenced with the law in existence when the offense was committed will demonstrate that the law under which he was sentenced deprived him of substantial rights and increased his punishment.

Section 7050 of the General Statutes of 1901, which was in force when the offense was committed, reads:

"The warden shall cause to be kept a record of each and every infraction of the rules of discipline by the convicts, with the names of the convict or convicts offending, and the date and character of each offense, which record shall be placed before the directors at each regular meeting of the board; and every convict whose name does not appear upon such record of reports for violation of the prison rules shall be entitled to a deduction from his sentence of three days per month, for the first year or fraction of a year, for each month he shall obey the rules of the penitentiary; and all such convicts who shall have become entitled to a deduction of three days per month shall, for a like faithful observance of all the prison rules during the second year, be entitled to a deduction of six days per month; and if any convict shall continue to obey the rules of the penitentiary for the remainder of his sentence, after the expiration of two years, he shall be entitled to a deduction of eight days per month until his sentence shall expire. If any convict shall be guilty of wilful violation of the rules of the prison, after he shall have become entitled to a diminution of service to which he has been sentenced, the directors shall have power to deprive such convict of a portion or all of such diminution of service to which he has previously become entitled by virtue of the provisions of this act; and it shall be the duty of the directors to direct the discharge of such convict when he shall have served out his sentence, less the time which shall be deducted therefrom by virtue of the provisions of this section.

If sentenced under the law which contained these provisions, the appellant would be entitled, as matter of right, to a deduction from the term of sentence of all time earned for good behavior, and when the time thus earned, plus the time served, equaled the period of sentence, he would be entitled, as matter of right, to a full discharge. There are no provisions in the law under which the appellant was sentenced entitling him to any reduction of time for good behavior, as matter of right. There are provisions authorizing the prison board to establish rules and regulations under which prisoners may be allowed to go upon parole after the expiration of the minimum time for which they were sentenced, and by which they may be discharged six months after being paroled, but these are all matters of favor to be determined by the prison board, the warden, the judge who passed sentence, and the governor. The right of the appellant under the law as it existed when he committed the offense to have a deduction of his sentence for good behavior was taken away from him by the act of 1903. This deprived him of a substantial right, and made the law of 1903, as to him, ex post facto.

An indeterminate-sentence law was enacted in Massachusetts in 1885. Under that law one Murphy was convicted of the crime of embezzlement, and sentenced. The law in existence when the crime was committed provided for a scale of credits for good behavior similar to ours, except that under the Massachusetts law the prisoner was not discharged when the time allowed for good behavior, plus the time of service, equaled the full sentence; he was admitted to parole for the unexpired term, and if he violated his parole he might be reincarcerated and required to serve the full term. Murphy prosecuted an appeal. (Murphy v. Commonwealth, 172 Mass. 264, 52 N.E. 505, 43 L. R. A. 154, 70 Am. St. Rep. 266.) It was held that as to the appellant the indeterminate-sentence law of 1885 was ex post facto because it deprived him of a right to which he was entitled under the law in existence when the offense was committed, viz., the right to receive credit for good behavior while serving his sentence. In Supplement, 13 Gray 618, 620, it was said:

"But, upon a careful consideration of that provision, we are of opinion, that the benefit promised, in consideration of good behavior, was intended to be an actual reduction of sentence, as a right, and not as a favor; it therefore operated upon the sentence itself."

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