187 A. 387 | Pa. | 1936
Argued May 19, 1936. This is an application for a writ of habeas corpus. The petitioner Roger Bison Smith is now confined in the Penitentiary for the Eastern District of Pennsylvania under a sentence of imprisonment for a term of from twenty to forty years, imposed upon him on September 2, 1926, by the Court of Oyer and Terminer of Chester County, upon his plea of guilty to a charge of murder in the second degree. The penalty prescribed for the first offense of second degree murder is "imprisonment by separate or solitary confinement not exceeding twenty years" according to Section 76 of the Act of March 31, 1860, P. L. 382, as amended by the Act of April 14, 1893, P. L. 17. The petitioner avers that the sentence under which he is being confined, being double that prescribed for the first offense of second degree murder, is illegal and should be reformed. He contends that the sentence should not have been for a term greater than "from ten to twenty years"; further that his detention in the penitentiary is without warrant in law, so that he should be released forthwith from custody.
It is well established that sentence to imprisonment for a greater period than warranted by law is an illegal sentence, to correct which the prisoner is entitled to a writ of habeas corpus: Com. v. Ketner,
The sentence of which petitioner complains was imposed under the second offender provisions of Section 182 of the said Act of 1860.1 On August 29, 1917, the petitioner pleaded guilty to a charge of voluntary manslaughter, and was sentenced to imprisonment for a term of from seven to twelve years. On May 8, 1923, by an exercise of executive clemency he received a full pardon for this crime from the Governor of the Commonwealth, upon recommendation of the Board of Pardons. Thereupon he was released from confinement. When in 1926 he was again convicted of a similar offense, the court deemed the second offender provisions of Section 182 of the Act mentioned to be applicable, and sentenced petitioner for double the period of time prescribed by law for the offense of second degree murder. It is urged by petitioner that the imposition of this sentence denied to him the full effect of the pardon granted for his previous offense, and therefore was a limitation upon the executive prerogative of pardon, which the court was without power or authority to impose.
The argument for petitioner proceeds upon the assumption that a sentence under the second offender provision of the Crimes Act is an imposition of additional punishment for thefirst offense. This is not a proper construction to place upon that provision of the Act. The section in question directs only the punishment which shall be imposed for the second crime. This provision is aimed at habitual criminals. It provides punishment *76 for the new crime only, but it is more severe if the defendant is a second offender. Whether the heavier punishment is to be imposed depends, by the words of the Act, upon the fact of a prior conviction. Certainly it was within the legislative discretion to provide heavier punishment for habitual criminals than for first offenders. Since there is no additional punishment attached to the offense for which pardon was granted, the executive prerogative is not infringed. The efficacy of the pardon is in no way affected. The fact of conviction, however, is a solemn record of the court which cannot be erased or blotted out. The test as to whether the second offender provisions of the Act of 1860 are applicable is the existence of the fact of prior conviction. In this view of the law, and we think no other can be sustained, it is clear that the sentence which petitioner is now serving was properly imposed, and that the writ of habeas corpus must be denied.
While apparently this question is before this Court for the first time we are not without guidance from the decisions of other jurisdictions. The precise point has been raised in a number of states under statutory provisions substantially similar to our own. While the authorities are not in agreement we think the weight of the better reasoned decisions is in line with the view which we have adopted.2
The opinion in the case of People v. Carlesi,
Com. v. Morrow, 9 Phila. 583, has been cited to us as an authority in this state for a contrary position to that which we have taken. An examination of the case discloses that although the learned judge who decided it, (PAXSON, J.), used language which might indicate that he had some doubt upon the question under consideration, he refrained from deciding the point.
The rule to show cause granted upon the petition for habeas corpus is dismissed.