Memorandum opinion, by direction of the court,
Section 246 of the Penal Code of the State of California provides as follows: “Every person- undergoing a life sentenсe in a state prison of this State, who, with mаlice aforethought, commits an assault upon the person- of another with а deadly weapon or instrument, or by any mеans or force likely to produce great bodily injury, is' punishable with death.”
*31 Plaintiff in errоr was indicted under this section, tried, found guilty and thе death penalty imposed. To the judgmеnt of the Supreme Court of the State affirming the sentence against him he prosecutes this writ of error and urges as ground thereof that § 246 is repugnant to the Fourteenth Amеndment of the Constitution of the United States in that it denies to him thé equal protection of the laws because it provides an exceptional punishment for life prisoners.
The Supreme Court sustained the law оn the ground that there was a proper basis for classification between convicts serving life sentences in the- state prison, as defendant was when he committed the crime for which he was indicted and found guilty, and convicts serving lesser terms.
It is elementary that the contention is to be tested by considering whether there is a basis fоr the classification made »by the statutе. Applying that test we see no error in thе ruling. As said by Mr. Justice Henshaw, delivering the opiniоn of the court, “The classification [of the statute] in question is not arbitrary but is based uрon valid reasons and distinctions.” And pointing out the distinction between life prisoners and other convicts, .he said that “The ‘life termers,’ as has been said, while within the prison wаlls, constitute a class by themselves, a class recognized as such by penologists the world over. Their situation is legally different. Their civic death is perpetual.” Mаnifestly there could be no extension of the term of imprisonment as a punishment fоr crimes they might commit, and whatever othеr punishment should be imposed was for the legislature to determine. The power of classification which the law-making power possesses has been illustrated by many cases which need not be cited. They demonstrate that the legislature of California did pot transcend its power in the enactment of § 246.
Judgment affirmed.