Thompson v. Harris

• Decision Date: 31 December 1943
• Docket Number: 6656,6655
• Citation: 106 Utah 32,144 P.2d 761
• Court: Utah Supreme Court
• Parties: THOMPSON v. HARRIS, Warden. DEMMICK v. SAME

144 P.2d 761

106 Utah 32

THOMPSON v. HARRIS, Warden.

DEMMICK v. SAME

Nos. 6655, 6656

Supreme Court of Utah

December 31, 1943

Original proceedings in the matter of the separate applications of Grover Thompson and of Carl Rolland Demmick for a writ of habeas corpus against John E. Harris, Warden of the Utah State Penitentiary. The writs having been issued the warden filed his return to each writ, and the cases were consolidated for presentation and argument.

Writ of petitioner Thompson denied, and writ of petitioner Demmick denied without prejudice.

Dorothea Merrill Dryer, of Salt Lake City, for plaintiff Thompson.

Ray S McCarty, of Salt Lake City, for plaintiff Demmick.

Brigham E. Roberts, Dist. Atty., of Salt Lake City, and Grover A Giles, Atty. Gen., for defendant.

WOLFE Chief Justice. McDONOUGH, MOFFAT, and WADE, JJ.,LARSON, Justice, concurring.

OPINION

WOLFE, Chief Justice.

Plaintiffs, Grover Thompson and Carl Rolland Demmick, each separately petitioned this court for a writ of habeas corpus. In each petition it was alleged that the petitioner was being illegally restrained by the defendant, John E. Harris, Warden of the Utah State Penitentiary. The writs issued ordering the warden to appear before this court with the prisoners at a time specified. The warden filed his return to each writ but by stipulation it was agreed that it would not be necessary for the warden to bring the petitioners before the court.

For the most part these cases involve identical points of law. They were consolidated for presentation and argument. What is said herein applies to both cases unless otherwise indicated.

Since the writs were made returnable to this court, no evidence was or could be taken at the hearing upon the return. The allegations in the return must, therefore, be presumed to be true. Jensen v. Sevy, 103 Utah 220, 134 P.2d 1081. In each return the warden alleged that he was holding the petitioner by virtue of a commitment issued by the District Court of Salt Lake County. The commitments attached to the returns appear to be in regular form. One commitment shows that petitioner Thompson was tried before a jury and convicted upon a charge of robbery and being an habitual criminal, and that on January 30, 1942, he was sentenced and committed to the State Prison for a term of not less than 15 years. The other commitment shows that petitioner Demmick was found guilty of the crime of burglary in the second degree and being an habitual criminal and sentenced to an indeterminate term of "not less than 15 years nor more than life" in the State Penitentiary.

The petitioners take the position that the returns themselves show that the District Court acted in excess of its jurisdiction in imposing sentences of not less than 15 years. This contention is based on the fact that the commitments filed with the returns show that each of the petitioners was sentenced as an habitual criminal under the Habitual Criminal Act, 103-1-18, U. C. A. 1943, which Act the petitioners contend had been repealed by the enactment of the indeterminate sentence law, Laws of Utah, 1913, Chap. 100, p. 192. We first consider this contention.

The Habitual Criminal Act was enacted in 1896, Laws of Utah, 1896, p. 262. It provided:

"Whoever has been previously twice convicted of crime, sentenced and committed to prison, in this or any other State, for terms of not less than three years each, shall upon conviction of a felony committed in this State after the passage of this act, other than murder in the first or second degree, be deemed to be an habitual criminal, and shall be punished by imprisonment in the State Prison for not less than fifteen years; * * *."

The statute was designed to fit into a system of punishment under which a person convicted of a crime was sentenced to a definite term, between fixed statutory limits. While a few crimes such as murder had minimum sentences of over three years, most felonies carried minimum penalties of one year and maximums of over three. Upon a conviction for any of the crimes carrying a minimum of one year and a maximum of over three years, the trial judge would, after weighing the surrounding circumstances, impose a sentence for a definite term. If that sentence and the subsequent commitment were for a period of three years or over, the conviction could be subsequently used as a basis for an habitual criminal charge; if the sentence was for a term of less than three years it could not be so used. See the discussion in this regard in State v. Walsh, 106 Utah 22, 144 P.2d 757.

In 1913, Laws of Utah 1913, Chap. 100, p. 192, the Indeterminate Sentence Law was enacted. It took from the trial judge the power to impose a definite sentence and in its place required him to impose an indeterminate sentence for a period of time not less than the minimum nor more than the maximum prescribed by law for that particular crime. The court was to advise the Board of Pardons as to the facts surrounding the conviction. These facts, together with the recommendation from the trial judge as to how long, in his opinion, the prisoner should be imprisoned, were to be forwarded to the Board of Pardons within 30 days from the date when sentence was imposed. The Board of Pardons was in all cases to decide the exact length of time the prisoner should serve in prison.

The petitioners contend that the indeterminate sentence law outlined a social policy with respect to the duration of sentences which was a complete substitute for the habitual criminal law and the social policy it represented. In furtherance of this contention, it is urged that: "If the legislature intended to give this board discretion respecting the duration of sentence to the Board of Pardons, it impliedly withdrew its own previous determination of the sentence in the type of case covered by the habitual criminal law. Such an implication is supported by the fact that the legislature gave such broad discretion to the Board of Pardons as to render inoperative every legislative determination of a 'minimum' sentence. The habitual criminal law is a minimum sentence law and is accordingly impliedly repealed." In this regard it may be noted that the Board of Pardons in passing upon an application for a prisoner's release can, in addition to the prisoner's conduct in prison and the facts surrounding the commission of the crime for which he was imprisoned, take into account information concerning the prisoner's prior life, his family, friends, and previous conduct. Any previous criminal record would of course be obtainable from proper sources. Thus, as petitioners urge, this procedure could have been designed to supersede the habitual criminal law. But it does not appear that such was the intent of the legislature.

Admittedly the indeterminate sentence law did not expressly repeal the Habitual Criminal Act, and repeals by implication are not favored. City of Tombstone v. Macia, 30 Ariz. 218, 245 P. 677, 46 A. L. R. 828; Southern Pac. Co. v. Railroad Comm., 13 Cal.2d 89, 87 P.2d 1055; People v. Downen, 106 Colo. 557, 108 P.2d 224; State v. Schnell, 107 Mont. 579, 88 P.2d 19, 121 A. L. R. 1082; Dondero v. Turrillas, 59 Nev. 374, 94 P.2d 276; Guiterrez v. Gober, 43 N.M. 146, 87 P.2d 437; State v. White, 170 Okla. 126, 39 P.2d 69; Cabell v. City of Portland, 153 Ore. 528, 57 P.2d 1292; Seattle First Nat. Bank v. Spokane Co., 196 Wash. 419, 83 P.2d 359; Brugneaux v. Dankowski, 51 Wyo. 103, 63 P.2d 800. It is only where there is a manifest inconsistency or conflict between a later and an earlier law that a repeal by implication will be held to have occurred. People v. Downen, supra; State v. Schnell, supra; Nelden v. Clark, 20 Utah 382, 59 P. 524, 77 Am. St. Rep. 917.

The Habitual Criminal Act and the Indeterminate Sentence Law are not irreconcilable. Where a sentence is imposed for an indeterminate period between a minimum and maximum the prisoner could not in any event be required to serve a term longer than the maximum. He is entitled to an absolute release when he has served the maximum time.

There is nothing in the Habitual Criminal Act which could be held to be in conflict or inconsistent with this. A sentence under the Habitual Criminal Act is an indeterminate sentence with a minimum of not less than 15 years and maximum of life. In effect this permitted the Board of Pardons to keep a person found to be an habitual criminal in prison for the rest of his natural life.

True the original procedure of having the trial judge who heard the evidence determine whether or not the criminal conduct was of such a nature as to justify the imposition of a sentence of "not less than three years" was repealed by the indeterminate sentence law. But repeal of part does not require a conclusion that the entire act has been repealed. Nelden v. Clark, 20 Utah 382, 59 P. 524, 77 Am. St. Rep. 917. One effect of the enactment of the indeterminate sentence law was that thereafter those crimes carrying indeterminate sentences with a minimum of less than three years could no longer be used as a basis for an habitual criminal charge. State v. Walsh, supra. There is, however, nothing to indicate that the legislature intended completely to abolish the Habitual Criminal Act. Those crimes which were of such a nature that the legislature required the imposition of a sentence for an indefinite term with a minimum of three years or more could still be used as the basis for a charge under the Habitual Criminal Act. If there had been two previous convictions for such crimes, then upon a subsequent conviction for any felony, the court was to impose a heavier penalty of not less than 15 years. This gave to the Board of Pardons a broad discretion. It could hold the prisoner, who had been...