Woods v. State

• Decision Date: 01 April 1914
• Citation: 169 S.W. 558
• Parties: WOODS v. STATE.
• Court: Tennessee Supreme Court

Page 558

169 S.W. 558

WOODS v. STATE.

Supreme Court of Tennessee.

April Term, 1914.

Appeal from Criminal Branch of Circuit Court, Madison County; N. R. Barham, Judge.

Amos Woods was convicted of housebreaking with intent to commit larceny, and he appeals. Affirmed.

Heron Pearson, of Jackson, for appellant. W. W. Faw, Asst. Atty. Gen., for the State.

NEIL, C. J.

The plaintiff in error was found guilty of the crime of housebreaking with intent to commit larceny, and the jury in their verdict fixed the term of imprisonment at five years in the state penitentiary, pursuant to the practice anterior to the passage of the indeterminate sentence law, chapter 8 of the Acts of 1913. The trial judge, disregarding so much of the verdict as assessed the period of imprisonment, fixed the term under the law just referred to at not less than three nor more than ten years, the minimum and the maximum of our statute for the crime for which plaintiff was found guilty. The crime was committed after the passage of the act of 1913.

The plaintiff in error has appealed, and assigns the action of the trial judge for error.

The ground of the assignment is that the act of 1913 is unconstitutional.

The main points of attack are that the act deprives the prisoner of his constitutional right of trial by jury; it deprives him of his liberty without due process of law, in violation of section 8 of article 1 of our state Constitution; it confers judicial powers upon certain administrative officers, the prison commissioners, in violation of those provisions of our Constitution which distribute the powers of government into three departments, legislative, judicial and executive, and forbid each to encroach on the domain of the others; it delegates legislative powers to the commissioners, in violation of the same provisions; it invades the pardoning power, bestowing on the board of prison commissioners authority which, under the Constitution, belongs only to the Governor.

There is another objection, to the effect that the act contains two subjects, in violation of section 17 of article 2 of the Constitution. This point, however, is so clearly without foundation that we shall not discuss it, and we mention it only for the purpose of putting the subject at rest.

In order to a proper determination of the other objections it is necessary that we state the chief provisions of the act, omitting matters which are merely subsidiary.

By section 1 it is enacted that, whenever any person over 18 years of age shall be convicted of any crime punishable by imprisonment in the penitentiary, the court shall sentence that person to confinement in the penitentiary for an indefinite period, not less than the minimum nor more than the maximum term provided by law for the crime, subject, however, to an allowance for good time as now provided by law.

Under section 3 the members of the board of prison commissioners are constituted a board of parole, clothed with power to cause to be released on parole any prisoner sentenced pursuant to section 1, when he has served the minimum term, less good time.

It is further provided that prisoners while on parole shall remain in the lawful custody of the board of parole, subject at any time to be returned to the penitentiary upon a violation of the terms of the parole, and that a written order of the board, certified by any member, shall be sufficient warrant to retake any such prisoner and return him to actual custody.

The instrument of parole must fix geographical limits as bounds for the convict, and these must lie wholly within the state, and they may be enlarged or reduced according to the conduct of the prisoner.

The board is given authority by and with the consent of the Governor to employ a suitable person as parole officer, also styled secretary, and through this officer its members are to keep in communication as far as possible with all prisoners on parole and with their employers. In addition, the prisoners are required to report to the board through this officer at such times and in such manner as the board may prescribe.

When such person on parole has kept the conditions thereof, in such manner and for such a period of time as shall satisfy the board that he is reliable and trustworthy, and that he will probably remain at liberty without violating the law, and that his release is not incompatible with the welfare of society, then said board may recommend to the Governor that he grant to such prisoner a final discharge from confinement under such sentence, and upon the granting of such discharge by the Governor it becomes the duty of the board to issue to the prisoner a certificate of such final discharge, and also to cause a record of the acts of said prisoner to be made, showing the date of his commitment, his record while in prison, the date of his parole, his record while on parole, and other reasons for his final discharge, together with any other facts which said board may deem proper; and a copy of such record, certified to by the secretary, it is declared, shall be admissible as evidence in any proceeding in which such prisoner seeks restoration to the rights and privileges of citizenship.

The act does not impair the right of trial by jury. Under our Constitution the right of trial by jury must be preserved inviolate. This means that it must be preserved as it existed at common law. The essentials of this right are that there shall be selected, in the presence of the trial judge, by the parties, under provisions giving each a fair opportunity for the selection, a jury of 12 good and lawful men; that they shall be duly sworn; that to them shall be submitted the issues between the parties, on the competent material evidence offered by the respective parties; that the trial judge shall preside, and pass upon the competency of evidence offered; that the jury shall be charged by the trial judge touching the principles of law applicable to the issues; that the jury, after having thus heard the evidence and received the charge of the judge, and considered them in relation to each other, shall render a unanimous verdict upon the issues; and that, if correct in form, it shall be received by the trial judge. It is not essential that the jury assess the punishment, unless the statutes of the state so direct. The power to declare what shall be the appropriate punishment for an ascertained crime belongs solely to the Legislature. That body may provide a minimum and a maximum, and leave it to the discretion of the jury to fix a definite term within these limits; or it may provide a single term, as is sometimes done, leaving nothing for the jury, except to respond to the issue of guilty or not guilty. The right to have the jury assess the punishment was not a part of the right of trial by jury at common law. Durham v. State, 89 Tenn. 723, 733, 18 S. W. 74; George v. People, 167 Ill. 447, 47 N. E. 741; People ex rel. Bradley v. Ill. St. Reformatory, 148 Ill. 413, 36 N. E. 76, 23 L. R. A. 139; Skelton v. State, 149 Ind. 641, 49 N. E. 901; Miller v. State, 149 Ind. 607, 49 N. E. 894, 40 L. R. A. 109.

We are unable to see how the constitutional provision concerning due process of law has been violated. That provision is:

"That no man shall be taken or imprisoned, or disseised of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land."

The statute in question is the law of the land, because it is a public, general law, applying to a definite and reasonable class of cases, that is to say, all felonies committed by persons over eighteen years of age, and bears equally upon all persons of the class described who shall commit such crimes subsequent to its passage. The language that he shall not be "deprived of his liberty, * * * but by the judgment of his peers," does not mean that the jury shall fix the punishment, but merely that in cases to which jury trials are applicable the prisoner shall not be deprived of his liberty but by the judgment of a jury finding his guilt. Upon such guilt being found by the verdict of a jury duly returned into court and accepted by the trial judge, the law at once attaches to it the penalty prescribed therefor, and it is the duty of the judge to pronounce such sentence.

It is therefore true in a very real sense that by such verdict he is deprived of his liberty. The result is not different from what occurred under the former practice, under which the verdict ascertained a definite period of service. That could not become operative until sentence was pronounced by the judge, but it was the duty of the judge to pronounce sentence if he permitted the verdict to stand. The only distinction under the present statute is in the extent of the imprisonment, or deprivation of liberty. The sentence, though indeterminate, not less than the minimum nor more than the maximum, is in effect for the maximum, subject to reduction in the manner stated, after the minimum time shall have been served.

The powers conferred on the board of prison commissioners are not judicial in their nature, but only administrative. They require the exercise of judgment and discretion, it is true; but it is essential that such powers be vested in administrative officers, to a limited extent, at least, otherwise they cannot discharge any of their duties. Each time such an officer acts, he must determine whether the special thing to be done falls within the line of the powers conferred upon him by law. This involves a comparison of the terms of the statute, and the nature of the matter offered as a duty, and a judgment or decision whether the latter falls within the former. The clerk of a court is required to issue an attachment on the filing of an affidavit, or of a bill properly verified, and the execution of such a bond as the law demands. Of the sufficiency of the...