Welch v. Mcdonald

• Decision Date: 28 December 1931
• Docket Number: No. 3742.,3742.
• Parties: WELCHv.McDONALD, County Sheriff.*
• Court: New Mexico Supreme Court

36 N.M. 23

7 P.2d 292

WELCH

v.McDONALD, County Sheriff.*

No. 3742.

Supreme Court of New Mexico.

Dec. 28, 1931.

Syllabus by the Court.

Sentence of imprisonment in state penitentiary for minimum period of 40 years and maximum of 90 years does not constitute “imprisonment for life” within bail statute (Comp. St. 1929, § 105-2532; Const., art. 2, § 13).

“Imprisonment for life” within Comp. St. 1929, § 105-2532, in part precluding release on bail where sentence is for “imprisonment for life,” means definite term fixed by the natural existence of the prisoner. It means that he shall be imprisoned until he dies.

Where sentence is to life imprisonment, indeterminate sentence law is inapplicable (Comp. St. 1929, § 130-163).

1. A sentence of imprisonment in the state penitentiary for a minimum period of 40 years and maximum of 90 years is not a sentence of “imprisonment for life” as contemplated by the bail statute. 105-2532, Comp. 1929.

2. In the case of a sentence for life, the indeterminate sentence law is not applicable.

Habeas corpus proceedings by Gilford Isaac Welch against Walter McDonald, Sheriff of Eddy County. An order was made admitting the petitioner to bail. On motion for rehearing.

Motion denied.

Where sentence is to life imprisonment, indeterminate sentence law is inapplicable. Comp.St.1929, § 130-163.

Caswell S. Neal, of Carlsbad, G. A. Threlkeld, of Roswell, and Carl A. Hatch, of Clovis, for petitioner.

E. K. Neumann, Atty. Gen., for respondent.

BICKLEY, C. J.

Petitioner was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a period of time not less than 40 years nor more than 90 years. Petitioner appealed from the judgment and applied to the district court for bail pending the disposition of the appeal by this court. Bail was denied, and petitioner applied to this court by habeas corpus proceedings to obtain bail.

We made an order admitting the petitioner to bail. The Attorney General filed a motion for rehearing.

[1][2] Counsel for petitioner relied upon the provisions of section 105-2532, Comp. 1929, a portion of which is as follows: “Whenever the sentence of the district court shall be that of death or imprisonment for life, the party convicted shall remain in close confinement until the decision of the supreme court shall be pronounced; in all other cases the party taking the appeal or suing out the writ of error shall be entitled to be released on bail,” etc.

He argues that a sentence for a term of not less than 40 nor more than 90 years is not one of “imprisonment for life.” We are in agreement with him.

There are two crimes under the statutes of New Mexico for which the punishment is stated specifically to be imprisonment for life. One is of carnally knowing and abusing a female child under the age of ten years, section 35-803, Comp. 1929, and bank robbery by use of a firearm or other deadly weapon, section 35-706, Comp. 1929. The legislative mandate to the judge imposing a sentence after conviction for these two crimes is plain. In case of bank robbery, by use of a deadly weapon, it is emphasized. It is provided by that statute that, if the robbery is not accomplished by the display of a deadly weapon, the punishment shall be imprisonment in the penitentiary for not more than 50 years and not less than 5 years. Under section 35-703, Comp. 1929, a bank robbery committed under certain circumstances is punishable by imprisonment in the penitentiary for “not less than five nor more than ninety-nine years, in the discretion of the court.” But in case of bank robbery committed under certain circumstances, and rape of a child, the Legislature has declared the policy that the offender shall be imprisoned for life, and no discretion in the district judge to impinge upon such policy has been recognized. In State v. Brigance, 31 N. M. 436, 246 P. 897, 899, we suggested that in the case of the rape of a child, “the punishment for which is definitely fixed by statute,” it would not be appropriate for the court to instruct the jury that it had a right to recommend clemency. It would seem that in these two instances the legislative intent is that imprisonment for life shall be in the exact terms of the statute, and that section 130-163, Comp. 1929, which provides that the court in imposing sentence shall fix the maximum and minimum duration of the same, has no application. It seems clear that, where a person is sentenced to imprisonment for life, death would mark the maximum duration of his imprisonment, but who could say what would be the minimum duration thereof?

So, if the court has imposed a sentence in exact words of “imprisonment for life,” the sentence itself manifests the intention of the judge and precludes bail pending appeal.

The difficulty arises because of what was said in Ex parte Parks, 24 N. M. 491, 174 P. 206, 207, holding that a sentence of from 90 to 99 years was a sentence for life. In that case the court took judicial notice that a period of time of from 90 to 99 years is beyond the ordinary period of life of any person, regardless of his present age or physical condition. The court went on to say: “Petitioners argue that the provisions of the statute for ‘good time’ to be allowed convicts in case of exemplary conduct become a part of the sentence, and necessarily reduce the length of the term of actual confinement. The conclusion is drawn that these petitioners may not be required to serve any very considerable part of the term by reason of those provisions. We do not deem those provisions to have any application to the question here. The question is whether the sentence now is one of imprisonment for life. Whether petitioners, by good conduct, may hereafter shorten the term of imprisonment would seem to be entirely immaterial.”

We are now convinced that the argument in the Parks Case is faulty as applied to the bail statute; the court then not having before it the contention and argument now presented.

“Imprisonment for life” means a definite term fixed by the natural existence of the prisoner. It means that he shall be imprisoned until he dies. There is no ambiguity in the words “imprisonment for life” as used in the bail statute, and the intent of the Legislature could not be more clearly expressed. Where there is no ambiguity in the statute, there is no occasion for construction. Atlantic Oil Producing Co. v. Crile, 34 N. M. 650, 287 P. 696.

If the sentence is imprisonment in the penitentiary for a minimum term or a maximum term, we see no reason why the prisoner is not entitled to the benefit of the parole and good time statutes, regardless of the length of such minimum and maximum terms. The very statute which requires the court in imposing sentence to fix the maximum and minimum duration of the same outlines circumstances and procedure under which the prisoner, after having served the minimum term of his sentence, may go upon parole outside the prison building and inclosure, and, when he has served not less than six months of his time acceptably, may secure his final discharge. In addition to this, the “good time” statutes are taken into consideration, so that, according to the practice prevailing, of which we take notice, the language of the parole statute, “after having served the minimum term of his sentence,” is construed to mean that the prisoner is eligible to parole after having served the minimum term of his sentence, less deductions for good behavior as provided by statute for such deductions. So, from information before us, as to the...