In re Petty

Lead Opinion

The opinion of the court was delivered by

Horton, C. J.:

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 ?

ch. 166, Laws Of 1872,if - ' Sevo?d?tive’ If the act of 1872 is an ex post facto law, it is unconstitutional, and void, as the legislature cannot pass such a law. The supreme court of the United States has defined an ear post facto law to be one which renders an act punishable in a manner in which it was not punishable when it was committed. (Fletcher v. Peck, 6 Cranch, 138.) This definition is-subject to the qualification that where the new law mitigates the character or punishment of a crime already committed, it does not fall within the prohibition of the constitution, for it then is in favor of the citizen. As the law of 1872.pre-scribes a year’s imprisonment at hard labor in the penitentiary in addition to the punishment of death, if intended to apply .to murder previously committed, it certainly changes-the punishment authorized to be inflicted when the crime was-committed. Counsel for the state contend, however, that the practical effect of the act is to change the punishment of death to imprisonment for life; and that therefore the law is valid as to offenses already committed, even if thereby it is retrospective in its operation, because such change-mitigates the penalty. The reasoning is not sound, as the convict can be executed at the pleasure of any executive-magistrate, at any time after one year. One governor may refuse to issue his warrant for the execution of the sentence, but his successor may determine otherwise, and order the hanging of all the convicts. Under the act, every moment of the prison life of the convict, after the expiration of one year, like the alleged lot of Damocles, is embittered by the dread of impending death. The sword is indefinitely suspended over his head, ready to fall at any time. Some argument may be presented, that the postponement of the execution of a death sentence a single year modifies the penalty. Much theorizing may be indulged in upon this point, but all of this is mere speculation. We cannot open the curtain of the future, nor foretell the ultimate condition of a convict after death. We have no absolute means of saying whether the old or the new law would be the more severe in a given case, and hence we cannot affirm that said act of 1872 mitigates the punishment. The courts of New York hold that a law similar to this one, which was substituted for a law like ours in force prior to the passage of said act, inflicts a greater punishment than the former law, and Judge Cooley coincides with that view-in his Constitutional Limitations. Therefore, if we regard said'act of 1872 as retrospective, it is within the condemnation of the national constitution, and void. (Cooley’s Const. Lim. 256, 272; Hartung v. People, 22 N. Y. 95; Hartung v. People, 26 N. Y. 167.) This conclusion leads us to decide that as the murder with which the petitioner stands charged was committed in 1866, and as the law of 1872 was not passed until after the commission of the offense, the prisoner is not subject to the punishment of the act of 1872. If he is not exposed to the infliction of any penalty under the statutes in force prior to the act of 1872, then as that act cannot apply in this case, the sentence and judgment are wholly void.

'fora,limas, 32, followed. „ „ .... , wj¡m m“euef; under' If such sentence and judgment are wholly void, and not merely irregular or erroneous, then the petitioner is entitled to his discharge. This brings us to consider the effect, as an original question, of the repealing clauses of the act of 1872. In the opinion of the writer, it-was the manifest intent of the legislature to have the act of 1872 apply retrospectively in all cases where the convict or person guilty of murder' in the first degree had not been sentenced prior to that act going into effect; that the law-makers supposed they had the power to enact such legislation, and intended, by the repealing sections of the act of 1872, to expunge the sections therein repealed as completely as though they had never existed This court, however, has decided, upon full argument and a careful consideration of the case, very differently, in the case

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.

Brewer, J., concurring. Valentine, J., concurring specially, as follows:

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Concurrence Opinion

Valentine, J.:

This is an action of habeas corpus brought by George W. Petty, for the purpose of obtaining a release from imprisonment in the penitentiary. He was charged, tried, convicted and sentenced in the district court of Greenwood county, a court of competent jurisdiction, for murder in the first degree, and is now being confined in the penitentiary in pursuance of said sentence. Our statutes relating to habeas corpus provide, among other things, as follows:

“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 imprisonment and hard labor fixed by the later act constitute both a change in the punishment and an increase in the amount thereof.

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. At the time of the passage of the act under consideration, •changing the punishment for murder in the first degree, and •ever since such time, it has been believed that the act was one lessening the punishment for murder in the first degree, instead •of an act increasing it. And is not this belief correct ? Suppose a man in the ordinary course of nature is to live ten years: now would it not be a greater punishment to him to take from him the whole of that ten years by executing him immediately, than to permit him to live one year or more, •even in a penitentiary, and then to take only nine of those years from him ? But under the new law, convicts are not in fact executed at the end of the first year, and they may never be executed. There has not been an execution in Kansas ■since said new law was passed, a period of over seven years. As long as men live, there are always hopes of a better future. Even convicts hope for pardon and liberty and a long life. ’

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 that we have since received. It was submitted to us by able- and industrious counsel. But the petitioner in this ease says-that said old law was repealed before this case was tried. According to the following authorities, however, the statute-(said old law) was not absolutely repealed, but was kept in force and alive for all cases of this kind by the general saving-clause found in the “act concerning the construction of statutes,” Gen. Stat. 998, §1. Said authorities are as follows:: Willetts v. Jeffries, 5 Kas. 473; Grilleland v. Schuyler, 9 Kas. 569; State v. Boyle, 10 Kas. 113, 116, 117; State v. Crawford, 11 Kas. 32, and others. Said general saving clause reads as-follows:

“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.

The repealing clause of the act of 1872 reads as follows: “Sections 258 and 259 of the act to which this is amendatory, and all other acts inconsistent herewith, be and the same are hereby repealed(Laws 1872, p. 338, § 6.) The petitioner relies entirely upon the above words in italics; but his logic is lame. He says that all of the act of 1872 relating to punishment for past offenses is void, because it is ex post facto; and yet he says that it is valid enough to drive all other acts inconsistent therewith out of existence. He says that his sentence is void because he was sentenced under the new law (that of 1872), which new law he says is void. He also says that he could not legally be sentenced under the old law, because it is inconsistent with the new law relating to punishments for past offenses, and is therefore, by the new law, repealed. And he further says, that any saving clause continuing the old law in force for any purpose would be inconsistent with this new and void law; and therefore that this new and void law would repeal the saving clause, or at least prevent its operation in this particular case. Now, I do not think that any valid law can be repealed merely because it is inconsistent with some new law, unless this new law is itself valid. A void enactment certainly cannot have the effect to repeal a valid law; and repeals by implication are never favored, even where the repealing law is itself valid.

In my opinion, the petitioner should not be discharged from custody.

Case Details

Case Name: In re Petty

Court Name: Supreme Court of Kansas

Date Published: Jul 15, 1879

Citation: 22 Kan. 477

Court Abbreviation: Kan.