102 P. 374 | Idaho | 1909
This is an original application for a writ of habeas corpus, and involves the constitutionality of see. 6452, Eev. Codes. This section reads as follows: “Every state prisoner confined in the state prison for a term less than for life, who escapes therefrom, is punishable by imprison
Counsel for petitioner contends, first, “that said section, both in its general operation and its application to your petitioner in particular, deprives persons charged thereunder, and your petitioner in particular, of their liberty without due process of law; second, that said section denies to persons charged thereunder equal protection of the laws; third, that said section is unreasonable and constitutes class legislation; fourth, that said section places persons charged thereunder in jeopardy a second time for the same offense.” The facts in this case are as follows:
The petitioner began the service of a two year sentence under a judgment of the district court of Shoshone county, on April 30, 1907, for the crime of burglary; and on July 9th of that year, while serving such sentence, made his escape from the state prison. He was recaptured and tried for such escape under the provisions of the section above quoted, and on September 14, 1907, was found guilty and a judgment rendered against him, in which judgment he was sentenced to undergo confinement at hard labor in such state prison for a term of two years from and after the expiration of the sentence which he was serving at the time of his escape. At the time the petition was filed in this ease the judgment committing the petitioner to said prison for burglary had been fully executed, and the petitioner was serving the sentence imposed under the judgment for escape from the state prison.
We do not think that the first objection made to the statute is well taken or that any extended discussion is necessary in order to show that said section is not unconstitutional because it denies to the person named therein due process of law. This section makes certain acts a crime but in no way takes away from the persons charged with such crime any of the rights conferred generally upon a person charged and tried with any other crime. The same court is given jurisdiction to try the person charged with a violation of this section as is given jurisdiction to try violations of every other
In the case of Eagleson v. Rubin, ante, p. 92, 100 Pac. 765, this court defined due process of law as follows:
“ ‘Due process of law,’ as used in sec. 13, art 1, of the constitution of this state, and also in the constitution of the United States, when applied to judicial proceedings, means that every litigant shall have the right to have his cause tried and determined under the rules of procedure, the same as are applied to similar eases, and when this is afforded to him, a defendant cannot complain that ‘due process of law’ is not being observed.”
This statute provides full opportunity to every person charged with a violation thereof, to have the charge prosecuted, tried and determined in the court having jurisdiction of the same, under the same forms of law as are provided for the trial of all other crimes under the constitution and laws of the state, and provides due process of law. (8 Cyc. 1080 et seq.)
We will next refer to the last ground assigned by the petitioner against the constitutionality of the statute, and that is, that it places persons charged thereunder in jeopardy a second time for the same offense. In argument, counsel for petitioner admitted that this objection was not well taken, and this clearly appears to be so, for the offense, upon which the prosecution is based, is that of escape from the state prison. This is not the charge which had previously been made against the petitioner. Neither has the petitioner been once tried for this offense. It is clear that the statute refers to a distinct offense, that of escape from the state prison, and it is for that offense that the statute under consideration provides punishment in the state prison.
It will be observed that the punishment to be inflicted under this statute depends entirely upon the sentence the convict is serving at the time of the escape. If a convict is serving a one year sentence and escapes, upon conviction of such escape he must be sentenced to serve an additional year from the expiration of the first sentence.
If a convict is serving a twenty year sentence and escapes, upon conviction of such escape he must be sentenced to serve an additional twenty years from the expiration of the first sentence. A maximum and-minimum penalty, within which the court is given the discretion to fix the punishment according to the gravity of the offense, is not permitted. The offense is not divided into grades, unless it can be said that the grade of the crime is fixed by the sentence from which the convict is escaping; and the attorney general adopts this contention and argues that the statute does graduate the punishment according to the offense for which the convict was serving at the time of the escape, and that this is a proper and reasonable classification.
We think it may be stated as a general proposition of law that every person is entitled to the equal protection of the law, and that equal protection of the law means that equal protection and security should be given to all under like circumstances in his life, his liberty and his property and in the pursuit of happiness, and in the exemption from any greater burden and charge than are equally imposed upon all others under like circumstances. (8 Cyc. 1058,1059; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 27 L. ed. 924.) Under this statute there would be as many different grades of crime as there are prisoners undergoing different sentences. A convict undergoing a one year sentence may conspire with a convict undergoing a twenty year sentence in planning and executing an escape, and may be the one who conceived the
“The difficulty is not met by saying that, generally speaking, the state when enacting laws may, in its discretion, make a classification of persons, firms, corporations, and associations, in order to subserve public objects. For this court has held that classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.....But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the fourteenth amendment forbids this.....No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government. . . .• . It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear, not only that a classification has been made, but also that it is one based upon some reasonable ground, — some difference*745 which bears a just and proper relation to the attempted classification, — and is not a mere arbitrary selection.’ ”
See, also, Cooley on Const. Lim., pp. 556-575; Wagner v. Milwaukee Co., 112 Wis. 601, 88 N. W. 577; Nichols v. Walter, 37 Minn. 264, 33 N. W. 800; Sutton v. State, 96 Tenn. 696, 36 S. W. 697, 33 L. R. A. 589; Murray v. Board of Commrs., 81 Minn. 359, 83 Am. St. 379, 84 N. W. 103, 51 L. R. A. 828.
The very theory of punishment, to be imposed for violations of the law, is, that such punishment should be proportioned to the gravity of the offense. For a statute to say that a convict confined in the state prison for a term of six months (as an illustration), who by force and violence breaks out of such state prison, upon conviction for such escape can only be confined for the term of six months, while a convict who peaceably escapes, without resorting to force or violence, shall be subject to a twenty year sentence because at the time of the escape he was serving such a sentence, is fixing an arbitrary, unnatural and unjust punishment, and is contrary to the spirit and in violation of the constitution of the United States as well as the constitution of this state. While the legislature, in prescribing and fixing punishment for crime, has very great latitude in classifying the same, still the rule is well recognized, that in making such classification it should be natural and not arbitrary, and should be made with reference to the heinousness or gravity of the act or acts made a crime, and not with reference to matters disconnected with the crime. In the case of State v. Lewin, 53 Kan. 679, 37 Pac. 168, the supreme court of Kansas had under consideration a statute reading as follows:
“That in case any convict shall escape from the penitentiary, .... the said conviet shall be taken by the warden before the district court of Leavenworth county, on information filed by the warden; and if the charge be sustained, the time said convict had served in the penitentiary prior to such act as charged shall not be counted as any part of the term of his sentence, but the said conviet shall be sentenced by the court to confinement in the state penitentiary for the full*746 term for which he or she was sentenced by the court before whom he or she was convicted and undergoing sentence at the time of the violating the provisions of this section: provided, that no limitation shall bar proceedings under this section.”
In the course of the opinion the court says:
“The punishment required to be imposed is not to be measured by the offense committed, but is made to depend wholly on the date of the sentence under which the prisoner was confined in the penitentiary at the time he committed the act for which he is punished. The court is required simply to obliterate the time that he has been confined in the penitentiary for his original offense, and, as a punishment for the escape or mutiny, to reimpose the sentence given by the court for his prior crime. So it may happen under this section 'that two men attempting or effecting an escape from the penitentiary on the same day, in concert, under precisely the same circumstances, and with exactly equal guilt, would receive wholly different punishment. If one had been confined but for a day, his punishment would be increased but by one day, while the other, who might have been confined for twenty years, would be sentenced to a further confinement for that number of years.....Can this be said to be an impartial administration of justice? Can it be said to be affording to all individuals the equal protection of the laws? The inherent vice of such an enactment is not fully apparent. .... We are not disposed to strain our construction of constitutional safeguards to uphold such a statute. We think section 28 wholly void, and the order of the district court, quashing the information, is sustained.”
The statute under consideration in this case in its practical application is the same as the statute under consideration in the case at bar. Two convicts effecting an escape from the state prison on the same day in concert under precisely the same circumstances and exactly equal grade would receive wholly different punishment. If one had been confined for six months, his punishment would be increased but six months, while the other, who might have been confined for twenty years, would be sentenced for a further confinement for that
The attorney general argues that a person confined in the penitentiary for a long term of years may be presumed of a more dangerous character than a person confined for a short term of years, and therefore the escape from the long term sentence is a greater crime than the escape from a short term sentence. The conclusion thus drawn by the attorney general we cannot approve. The mere fact that a person may be serving a long term of years is not, in our opinion, evidence that such person is a more dangerous person to society than a person serving a short term of years. It is, however, evidence that the person serving a long term of years has committed a more grave offense which deserves greater punishment than the person serving a short term of years. When the sentence has been finished the penalty has been paid. All convicts having completed the sentence are supposed to have discharged their full debt to society and the state, and upon the discharge of such debt they are presumed to all be on an equality in so far as being entitled to the protection of the law. Under this statute, however, notwithstanding the fact that a convict has paid the penalty in full, by having completed his sentence, if he escapes from the state prison where confined, his future punishment is regulated entirely by the debt which has been fully paid and discharged.
The assertion that society will be in greater danger from the person who has served á long term of years than from the person who has served a short term, — in case of escape from the penitentiary, — is not, in our judgment, based upon reason or natural laws or .conditions, and not a natural reason why a greater punishment should be imposed upon the person who escapes from the penitentiary while undergoing a long-term sentence than is imposed upon a person undergoing a short term. But the punishment thus fixed for escape is arbitrary, unreasonable, unnatural and in no way based upon the nature, character, or gravity of the offense.
Counsel for the petitioner also argue that this act discriminates in favor of federal prisoners confined in the state prison, and other persons who may be confined therein, although not in execution of a judgment of conviction. Sec. 8490, Rev. Codes, provides: “The warden shall receive, safely keep, and subject to the discipline of the penitentiary, any criminal convicted of any crime against the United States, and sentenced to confinement therein by any court of the United States sitting within this state, until such sentence is executed, or until such convict is discharged by due course of law; the United States supporting such convict and paying the expenses of executing such sentence.”
This statute was no doubt enacted to carry into effect the provisions of an act of Congress of June 30, 1834 (4 Stat. 739), which declared, “That any criminal imprisoned in a state penitentiary should be subject to the same discipline
It is argued by the attorney general that a critical examination of this statute will lead to the conclusion that the legislature, in prescribing the punishment for escape, intended to fix the maximum penalty to be inflicted at not to exceed the term which the convict was serving at the time of his escape, and to leave to the discretion of the trial court the punishment not exceeding the maximum. To reach this conclusion we will confess would require a most critical examination, and to a degree that has not enabled us to discover the meaning which the attorney general.thus attempts to give to the language used: When the statute says, “Every state prisoner .... who escapes, is punishable,” and the punishment is fixed, we are not advised of any process of reasoning by which we could discover the power of the trial court to impose any lesser punishment than fixed by the statute. To give this construction to this statute, it seems to us, would be to legislate upon the subject, and supply what we might
The attorney general also argues that to hold this act unconstitutional, and thereby release from the penitentiary those who have been convicted of violating the same, would be a very great wrong. This court, however, is called upon to administer the law as it is written, as near as we can understand it, and if the result be to release persons who are now confined in the penitentiary, it is not the concern of this court, for if the law is unconstitutional under which a conviction is had, then the party convicted should not be in the penitentiary and his imprisonment is illegal and wrongful. If the constitutional rights of an inmate of the penitentiary have been invaded, it is just as much the duty of the court, as we understand it, to give to this person his constitutional rights as to any other person, whatever his station or position in life may be. It is for the legislature to enact the law and it
For the reasons heretofore given we hold that the act under consideration denies to the persons named therein equal protection of the laws, that it is special and class legislation, and violates the fourteenth amendment of the constitution of the United States and the constitution of this state. The demurrer to the petition is overruled, and the petitioner is ordered discharged from the custody of the warden of the state prison.