State v. Yockey

• Decision Date: 16 March 1937
• Docket Number: 6363
• Citation: 66 P.2d 111,57 Idaho 497
• Parties: STATE, Respondent, v. LESLIE YOCKEY and JACK ALLEN, Appellants
• Court: Idaho Supreme Court

66 P.2d 111

57 Idaho 497

STATE, Respondent, v. LESLIE YOCKEY and JACK ALLEN, Appellants

No. 6363

Supreme Court of Idaho

March 16, 1937

CRIMINAL LAW-PAROLE-DISCRETION OF TRIAL JUDGE.

Sentencing minors, who were first offenders, to penitentiary for burglary after court stated as ground for sentence that, if placed in jail, minors would have more confinement than in penitentiary, that court was "wrought up" about matter, and that principal object of sentence was not to punish, but to set an example for others, and conceded that parole would not be inadvisable, held error, in view of statute under which court might have sentenced minors to jail or industrial school, or suspended or withheld judgment and placed minors on probation.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Appeal from conviction of burglary. Reversed in part.

Judgment reversed with directions.

A. L Morgan and E. E. Poulton for Appellants.

Trial courts are permitted the exercise of broad discretion in the application of probationary statutes, but such statutes do not authorize arbitrary action. (People v. Lippner, 219 Cal. 395, 16 P.2d 1020, 26 P.2d 457.)

The purpose of probationary statutes is the reformation and rehabilitation of the defendant and, while the application of such statutes is discretionary with the trial court, such statutes involve a substantial right of the defendant, and invoke the exercise of sound discretion by the trial court. (People v. Lippner, supra; Mark v. Wentworth (Mass.) 85 N.E. 81; Rosenwinkel v. Hall, 61 F.2d 724; United States v. Maisel, 26 F.2d 275.)

Bert H Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

Where the trial court, in imposing a sentence, fixes the punishment within the limits prescribed by statute, the exercise of its discretion in the matter is not reviewable on appeal. (State v. Farnsworth, 51 Idaho 768, 10 P.2d 295; State v. Kruger, 7 Idaho 178, 61 P. 463; 2 R. C. L. 214 (sec. 177 and notes); State v. Harness, 11 Idaho 122, 80 P. 1129; 17 C. J. 254, sec. 3591.)

It is the universal rule that an abuse of discretion to warrant reversal must be patent and damaging to appellant's rights. (See compilation of cases under Criminal Law, sec. 915 to 927; 2 R. C. L. 214, sec. 177; State v. Farnsworth, supra.)

BUDGE, J. GIVENS, J., HOLDEN, J., (Concurring Specially). AILSHIE, J., Dissenting.

OPINION

BUDGE, J.

Appellants, two boys then 19 and 20 years of age, were charged in an information with first degree burglary, to which, upon arraignment they entered a plea of guilty, and they were then sentenced to the penitentiary for the statutory indeterminate term of one to fifteen years. From the record it appears that prior to pronouncement of judgment the trial court entertained an application and received evidence for the purpose of determining whether or not the statutory penalty should be imposed or a lesser or different punishment inflicted as provided by I. C. A., section 19-2501. Witnesses were examined and their testimony, as well as all the proceedings, were taken by the court reporter and subsequently transcribed. The record discloses that the testimony taken was of such a character as to bring appellants and each of them within the provisions of I. C. A., section 19-2501, which provides as follows:

"Whenever any person shall have been convicted of any crime against the laws of this state except those of treason or murder, and the defendant has never before been convicted of a felony, the court may in its discretion, commute the sentence and confine the defendant in the county jail, or, if the defendant is of proper age, in the state industrial school, suspend the execution of judgment or withhold judgment on such terms and for such time as it may prescribe, and in either event, may put the defendant on probation in the charge of one of the probation officers of the juvenile court of the county in which the court is sitting or other probation officer, or of any other person selected and designated for that purpose."

Neither of the appellants had ever before been convicted of a felony or of any other crime. It further appears that one appellant had for some time prior thereto been enrolled in a C. C. C. Camp and that the other had for some time been employed on a farm in the state of Washington. Evidence was adduced to the effect that, with the exception of the offense to which they entered the plea of guilty, appellants' conduct had not been subject to criticism, that they had no criminal proclivities, and that the property, to wit: jack-knives, they had carried away from the store burglarized, had been returned. The trial court, after hearing the testimony and arguments of counsel and after personally questioning appellants at some length, all with relation to the mitigation of punishment, made extensive observations, all of which we do not deem it necessary to recite. Among other things the following appears:

"The COURT: It is a most difficult thing for the court to send them to the penitentiary. . . . In different cases I have taken different action, owing to the peculiar circumstances in each case. . . . Put these young men in the county jail, and they would have probably six or eight months in the heated period of the year, and would have more confinement than in the penitentiary. . . .There is one thing the court always considers, and especially of late; there seems to have been a marked increase in crime. While I feel very sympathetic toward young men placed as these young men are, I have to take the good of society into consideration. No matter what judgment is pronounced, it should be in the nature of an example in deterring others from committing crime. I have determined after most careful consideration, and I have to confess I have been very much puzzled--I have finally decided, however, that the law shall simply take its course, and the punishment shall be from the minimum to the maximum.

". . . . Where I feel as I do at the present time I would be disposed to make a report, a formal report as I am supposed to do, to the Board of Pardons, and upon their good behavior recommend the greatest leniency possible, and asking them to place those young men so they will not be in constant contact with the worse criminals in the penitentiary. . . . To parole them, these young men, I believe that no ill would come as far as that is concerned, if that was done, I believe they will try to do better. . . . I believe it is upon the very idea of setting an example before society that I feel it my duty to carry out the law as contemplated by statute, according to the strict letter of the statute. . . . If the Board should see fit to pardon them before they have served their time, (1 to 15 years) I shall have no objection. I shall make no recommendation of that kind, but I shall have no objection if they see fit to do it.

"Mr. MORGAN: I would ask the Prosecuting Attorney to stipulate that as far as he knows, and as far as the records here show, these young men are both first offenders before this court; it is their first offense to come before this court, and there is nothing in their record with the exception of the matter to which they have pleaded guilty, that would make it improper that a suspended sentence, or a suspension of judgment in either case apply to their cases.

"The COURT: I take that for granted, . . . . The Court has absolutely no knowledge of these young men ever doing an unlawful act in their life before. That makes no difference. . . . I have been so wrought up about this matter, and all cases of this kind. . . . The primary object is not to punish these boys. . . . The principal object is not to punish the offender, it is to set an example for a good many other boys.

"Without reference whatever to this statute--without reference to that at all, (I. C. A. sec. 19-2501) . . . . the theory of the criminal law, (is) not to seek vengeance against the wrongdoer, but, abstractly, to deter others from the commission of crime. . . . We have to have these laws, and they are meant, their first prime object is to set an example to others inclined to do wrong."

We have therefore, this situation: Appellants sought to and bring themselves within the provisions of I. C. A., section 19-2501. Under said provisions the court may in its discretion commute the sentence by confining defendant in the county jail, second, if the defendant is of proper age confine the defendant in the state industrial school, third, suspend the execution of judgment, fourth, withhold judgment on such terms and for such time as it may prescribe, or, fifth, in either event may put the defendant on parole in charge of one of the probation officers or any other person selected and designated for that purpose. The statute was enacted by the legislature to serve a humane purpose--to bring about the rehabilitation of defendants coming within its provisions. We cannot read the record without reaching the conclusion, apparent on its face, that the court did not take into consideration the reason or purpose for the enactment of I. C. A., section 19-2501. The trial court disregarded the statute and based its denial to favorably consider appellants' application upon grounds not sanctioned by the spirit and purpose of the statute, and not guided or controlled by principles established by law therefor. For instance, as a reason for not invoking the statutory provisions the court says to "put these young men in the county jail . . . . they would have probably six or eight months in the heated period of the year, and would have more confinement than in the penitentiary," which, as we view it, would be no...