110 P. 1036 | Idaho | 1910
This is an original application to this, court for a writ of habeas corpus for the release of the applicant, Joseph Chase, who, it is alleged, is unlawfully imprisoned and restrained of his liberty by John W. Snook, the warden of the state penitentiary.
It is alleged in the petition that said imprisonment and restraint are illegal, and that the illegality consists in the fact that the said Chase was on the 9th day of November, 1909, in the district court of Bingham county, convicted of the crime of rape, committed on or about the 1st day of January, 1909, and thereupon sentenced by the judge of said court to be imprisoned for a term of from five to fifteen years in the state penitentiary; that said term of imprisonment is indefinite and uncertain, and was imposed under and by virtue of the law of the state of Idaho which took effect on the 6th day of May, 1909, known as the indeterminate sentence law (Sess. Laws 1909, p. 82), and long after the commission of the crime for which said Chase was sentenced, and it is contended that said court should have sentenced said Chase under the law in force when said crime was committed, to wit, under the provisions of sec. 6768, Rev. Codes.
Under the provisions of sec. 6768, Rev. Codes, the plaintiff could not have been sentenced for a less term than five years. Sec. 1 of said indeterminate sentence law provides, among other things, that the court imposing the sentence shall not fix the limit or duration of the sentence, but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less than the minimum provided by law for the crime for which the person was convicted and sentenced. As the law existed at the time said crime was committed, the minimum penalty for the crime of rape was five years imprisonment and the, maximum extended to life. The maximum rested in the discretion of the court, but the minimum was absolutely fixed, and the court in passing sentence upon the prisoner gave him the minimum of five years with a maximum of fifteen years. The prisoner ought to have bebn sentenced under the provisions of said sec. 6768 and ought'to have been given a sentence of not less than five years. The question then arises: Is the sentence imposed absolutely void ? Is it so indefinite and uncertain as to be absolutely void? The sentence is not uncertain as to the minimum of five years; no indefiniteness exists as to that term. Then, does the addition thereto of the indeterminate sentence fixing the maximum at fifteen years render the minimum sentence void? We think not.
In 12 Cyc., p. 782, the author says: “Although there is some conflict in the cases upon whether the sentence which imposes a punishment in excess of the power of the court to impose is void in-1oto or is void only as to the excess, the
In Martin v. District Court, 37 Colo. 110, 119 Am. St. 262, 86 Pac. 82, the court had under consideration the question whether the judgment sentencing a prisoner under the indeterminate sentence law of that state for a crime committed before such law went into effect was void or only voidable, and held that at most it was only voidable and so could not be reviewed by habeas corpus. The court said:
“But that doctrine need not be invoked in this proceeding. This sentence is not uncertain as to the minimum length of twelve years. No indefiniteness exists until, at least, that period is passed. We might grant that after the prisoner has served the minimum sentence thus imposed, his confinement thereafter would be illegal, and the courts might release him. The strongest objection that can be urged against this judgment is that it is excessive and indefinite. We have seen that it is not indefinite up to the minimum, and the decided weight of authority is that where a judgment is merely excessive, and the court which pronounces it is one of general jurisdiction, it is not void ab initio because of the excess, but is good so far as the power of the court extends, and is invalid only as to the excess, and therefore a person in custody under such sentence cannot be discharged on habeas corpus until he has suffered or performed so much of it as it is within the power of the court to impose. This has been expressly decided by the supreme court of the United States in United States v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746, 38 L. ed. 631, and in other eases therein referred to. See, also, In re Graham, 74 Wis. 450, 17 Am. St. 174, 43 N. W. 148, and In re Graham, 138 U. S. 461, 11 Sup. Ct. 363, 34 L. ed. 1051.”
We think the correct rule is announced in that case, and that until the prisoner has served his term of five years, which may be shortened under the statute by good behavior, he would not be entitled to be discharged on habeas corpus.
Great reliance has been placed by counsel for applicant upon the decision of this court in Ex parte Cox, 3 Ida. 530,
We therefore conclude that the prisoner is not entitled to his discharge. The writ is quashed and the prisoner is remanded to the care and custody of the warden of the state penitentiary.