22 Kan. 477 | Kan. | 1879
Lead Opinion
The questions presented to this court for decision are—
First, Whether the punishment under ch. 166, Laws 1872,. applies to offenses committed prior to that act?
Second, If the provisions of ch. 166, Laws 1872, are not applicable in this case, whether the prisoner can be relieved, under a petition for a writ of habeas corpus ?
of The State v. Crawford, 11 Kas. 32; and my brethren think that case should be adhered to. , Under that authority, the action of the legislature, in adopting the act of 1872, did not release the petitioner from the penalty of his offense, and the district court did not lose jurisdiction with the return of the verdict of the jury. Under the verdict, he was liable to be sentenced to the punishment of death. The sentence actually passed, omitted the appointment of a day on which the sentence should be executed, and provided that the governor should set the day of the execution at a time not less than one year from the day of sentence; but this was an irregularity, or rather an erroneous order, to carry out the sentence of death, and not a void judgment. The court had jurisdiction of the person of the prisoner and of the offense. The verdict was valid. The court had also the power to render a judgment of death, and therefore the petitioner cannot be relieved on habeas corpus, as our statute declares that no court or judge shall inquire under a petition for habeas corpus into the legality of any judgment or process whereby a party is in custody upon any process issued on any final judgment of a court of competent jurisdiction. This court cannot furnish any remedy to the petitioner in this proceeding. In other words, the proceeding by habeas corpus is not the proper manner to correct or review the sentence in this case. Upon an appeal, all the rulings' of the district court may be reviewed, and the erroneous judgment be set aside or modified, as the legal rights of the petitioner shall demand.
The petitioner must be remanded to the custody of the warden.
Concurrence Opinion
This is an action of habeas corpus brought by George W. Petty, for the purpose of obtaining a release
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the following cases: .... Second, Upon any process issued on any final judgment of a court of competent jurisdiction.....Fourth, Upon a warrant or commitment issued from the district court, or any other court of competent' jurisdiction, upon an indictment or information.” (Gen. Stat. p.763, §671.)
And see case of Fx parte Nye, 8 Kas. 99, 100, holding that this statute means what it says.
But the petitioner says that the district court of Greenwood county was not a court of competent jurisdiction for the trial of this case, for the following reasons, to wit: The act fixing the punishment for the offense, at the time the offense was committed, was subsequently repealed; and the act fixing the punishment at the time, and under which he was convicted and sentenced, was and is ex post facto, unconstitutional, and void. Now the only change with regard to the punishment made in.the law since the offense was committed is as follows: At the time when said offense was committed, the punishment for murder in the first degree was death by hanging, in not less than four nor more than eight weeks. (Gen. Stat. 319, 861, 862.) The punishment now for such offense is death by hanging, in not less than one year, and the time may be extended indefinitely; and in the meantime the convict is to be confined in the penitentiary at hard labor.
It is admitted that the punishment for an offense may be legally diminished or- lessened by the legislature after the offense has been committed, but it is claimed in this case by the defendant that the punishment has been changed in kind and increased in amount. It is claimed that the imprison
Now murder in the first degree is the highest degree of felonious homicide. ■ It includes within itself all the other degrees — murder in the second degree, and the four different degrees of manslaughter; and the petitioner in this very case (who killed the deceased by shooting him with a pistol)' committed all the various degrees of felonious homicide at the same time that he committed the highest degree, and might have been tried, convicted and punished for any one of such degrees, at the election of the prosecution. Thus, he might have been tried and convicted for murder in the second degree, and punished therefor by imprisonment in the penitentiary for life, or for a term of years; or, he might have been tried and convicted for any lower degree of the offense,, and a still lighter punishment inflicted upon him. That is, the state, at the time the petitioner committed said offense, had .the right, through its prosecuting attorney, to waive all the distinctive elements constituting murder in the first degree, and. to waive the distinctive punishment for that degree, and to cause to be inflicted upon the offender only the punishment of imprisonment in the penitentiary; and there-, fore, as the state could have done all this through its prosecuting officer, can it not also do the same thing through its legislature? If it can, then there can be no difficult}5- in a change by the legislature of the punishment to be imposed for murder in the first degree, in cases like the one at bar, from death to imprisonment in the penitentiary.
But the petitioner claims that there is not only a change in the punishment, but that there is also an increase in the amount thereof. He claims that under the old law the punishment was death, but that under the new law it is imprisonment and death. Now in all ages and in all countries immediate or sudden death has been considered as the highest of all earthly punishments, and torture alone has been the only other element resorted to to heighten this punishment.
But suppose that said new law is void so far as it affects the punishment for murder in the first degree where the offense was committed prior to the passage of the law, then might not the offender still be punished as for murder in the ■second degree, or for some lower degree of felonious homicide? And if he might, then is not the present imprisonment of the present petitioner lawful, even if that portion of the sentence •ordering him to be executed is void? A conviction for mur•der in the first degree is in a case like this a conviction also for murder in the second degree, and imprisonment in the ■penitentiary for murder in the second degree is lawful. Would the excess in the charge (the information in this case •charging murder in the first degree), and the excess in the conviction (the conviction also being for murder in the first •degree), invalidate the sentence if rendered as for murder in the second degree, if the state should accept such a sentence? 'The sentence might in such a case, or in any given case, be irregular, but would it be void?
But according to the case of The State v. Crawford, 11 Kas. 32, 46, the petitioner should have been sentenced under the <old law. When that case was decided, we had all the light
“In the construction of the statutes of this state, the following rules shall be observed, unless such construction would' be inconsistent with the manifest intent of the legislature, or repugnant to the context of the statute: First, The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed. - The-provisions of any statute, so far as they are the same as-those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” (Gen.. Stat. 998, 999.)
The petitioner seems to admit that in all ordinary cases of repeal, the foregoing saving statute would apply and save all’ rights of the state and of all other parties. But he says this is not an ordinary case of repeal. He does not say in words that it was “the manifest intent of the legislature” that all murderers who had committed murder in the first degree prior to the passage of the act of 1872, and who had not. been convicted at that time, should go absolutely free; but. his logic leads to that result. He says that it was “the manifest intent of the legislature” that the old law should be-repealed; and he further says that the new law of 1872 cannot have operation, because it is ex post facto, unconstitutional,, and void. And therefore he says that he should go absolutely free.
In my opinion, the petitioner should not be discharged from custody.