176 P.2d 910 | Idaho | 1947
Lead Opinion
Achsa Shryer and Joan Carpenter were jointly informed against, prosecuted and convicted of carrying hacksaw blades to prisoners to aid their escape, in violation *280 of Section 17-807, I.C.A.1 Joan Carpenter alone has appealed herein.
At the time fixed for the pronouncement of sentence, appellant, through her attorney, applied to the court for leniency under Section
The State moved to dismiss the appeal because appellant, by seeking and accepting the commutation of sentence, forfeited and waived her right of appeal.
Conceding that acceptance of executive pardon or parole or judicial parole has been held to either limit or annul appellant's right of appeal from the judgment of conviction, Brooks v. State,
There must be a valid judgment of conviction to support a valid penalty. The entire pronouncement was at one time and all part of one judicial transaction and no authority has been presented that holds under this precise situation appellant has been, and no valid reason has been suggested why appellant should be, deprived of the right to question the validity of the conviction.
Neither reason nor justice supports or authorizes the proposition that a defendant by seeking or securing a minimal sentence jeopardizes or sacrifices the right to test by appeal the legality of his conviction, an essential condition precedent to sentence. State v. Jacobson,
The general circumstances surrounding the offense of which appellant was convicted *281 were that one Clyde Pease and Ace Jacobson were being held in the City Jail in Twin Falls on a felony charge for California authorities. Appellant had been arrested previously with Pease on a vagrancy charge and incarcerated. She was released upon payment by her of her fine. She thereafter visited the jail and claimed Jacobson threatened her if she did not secure and bring to them hacksaw blades, which threats appellant contends her claimed common-law-husband Pease told her she had better comply with. She purchased the blades and with Achsa Shryer, formerly Jackie Smith, went that evening to the jail. Each woman said the other put the blades through a window or hole in the wall into the City Jail as directed. The blades were discovered and four of the bars of one of the windows in the cell block were sawed through and bent up. The arrest of appellant and Achsa Shryer, Aces' acquaintance, and self-accusatory admissions followed.
Appellant in numerous assignments of error contends the evidence is insufficient to sustain her conviction, particularly in this; that she and Clyde Pease were married and she aided in procuring and passing the hacksaw blades into the City Jail where he and Ace Jacobson were confined, under threats made by Jacobson and so affirmed by her husband as to absolve her from criminal complicity by reason of Section
The question of conjugal status and to what extent, if any, appellant acted under threats vicariously acquiesced in by Pease, or was dominated by his commands or coercion, were questions of fact to be determined by the jury. State v. Hendricks,
Section
The instructions given by the court were fully favorable to appellant and sufficiently, substantially and adequately covered these phases of the controversy.4 *282
State v. Sayko,
Hence, there was no error in rejecting the requested instructions. State v. Fleming,
Consequently, the judgment of conviction is affirmed.
BUDGE and MILLER, JJ., and SUTPHEN, D.J., concur.
* * * * * * *
"7. Married women (unless the crime be punishable with death) acting under the threats, command, or coercion of their husbands. * * *." Section
"You are instructed that where two parties, both competent to enter into a marriage status, cousummate a common law marriage, they are just as effectually married to one another as if they had been married pursuant to a marriage license and a marriage ceremony conducted by a minister or authorized civil officer and thereafter the marriage remains in full force until it is dissolved by law or the death of one of the parties and any subsequent acts of concealment or maintenance of secrecy concerning the relationship between the parties is not sufficient to destroy a marital status after it has once been assumed in contemplation of law.
"You are instructed that if you find and believe from the evidence that the defendant, Joan Carpenter, at the time of the alleged offense, was the wife of one Clyde Pease, and that such offense was committed in the presence of her husband under threats, coercion or compulsion by him, and that she did not willingly commit such offense, if you find that the same was committed, then such defendant, Joan Carpenter, would not be liable therefor.
"You are further instructed that if such alleged offense was committed by the defendant, Joan Carpenter, in the presence of her husband, then a presumption of law arises that she acted under coercion by her husband; however, such presumption is rebuttable, and may be overcome by other facts and circumstances appearing in evidence. You are further instructed that the words 'presence of her husband' do not necessarily mean the immediate presence of her husband, it being sufficient if he were near enough during the course of the transactions to influence her conduct, or, if the acts complained of were completed in his presence, although not begun in his presence." Instructions Nos. 13, 14, and 15. *283
Dissenting Opinion
Achsa Shryer and Joan Carpenter were informed against, tried and convicted in the District Court of the Eleventh Judicial District of the State of Idaho, in and for Twin Falls County, of the crime of carrying certain articles (steel hacksaw blades) into the jail of that County, useful to aid a prisoner therein, one Clyde Pease, to escape. Following conviction and sentence to the penitentiary for not less than one nor more than five years, respective counsel, in open court, both defendants being present, made application for leniency, a showing being made in support of the Carpenter application. The applications were argued and submitted, whereupon the court entered the following judgment: "It is thereupon ordered, adjudged and decreed, That the said Achsa Shryer and Joan Carpenter are guilty of Carrying to Prisoner things to aid Escape and that they each be punished by imprisonment in the Penitentiary of the State of Idaho, for the term of not less than one year nor more than five years, but that the sentence be commuted, and that they each be confined in the Twin Falls County Jail for a period of four months." The appeal to this court is from the judgment.
Respondent moves to dismiss the appeal upon the ground, among others, "that by her own act in making application for and inducing the trial court to exercise its discretion, under Section
Section
This Section was amended in 1943 (Session Laws 1943, Chapter 14, page 43), several changes and additions, italicized, beingmade. As so amended it provides: "Parole. — Whenever any person shall have been convicted, or enter a plea of guilty inany District Court of the State of Idaho, of or to any crime against the laws of the State, except those of treason or murder * * * the court may, in its discretion, upon applicationby the defendant, commute *284 the sentence, confine the defendant in the county jail, or * * * suspend the execution of the judgment, or withhold judgment on such terms and for such time as it may prescribe * * * and may put the defendant on probation in charge of * * *some proper person selected and designated by the court for that purpose, and make such orders relative thereto as theCourt in its sound discretion deems necessary and expedient."
Respondent argues: "First, where a defendant, after conviction or plea of 'guilty', makes application under Section
It will be noted Section
It will have been observed Section
1. Commute the sentence.
2. Imprison in the county jail.
3. Suspend execution of the sentence. *285
4. Parole the defendant by withholding judgment and putting him "on probation in charge of * * * some proper person selected and designated by the court for that purpose, and make such orders relative thereto as the Court in its sound discretion deems necessary and expedient."
While, as will have been noticed, the Statute provides for the parole of a convicted defendant, appellant did not make such an application. The record shows she made an application for leniency. Funk Wagnall's New Standard Dictionary thus defines leniency: "The state or quality of being lenient; lenity; forbearance; mildness." It defines lenient: "Of merciful disposition; proceeding from or showing a merciful disposition; disinclined to or refraining from severity; not harsh, gentle; mild; indulgent."
By her application for leniency, appellant asked the court to be lenient; in other words, not to be harsh or severe in the matter of imposing sentence. That the court so understood her application conclusively appears from the judgment itself in that, after imposing a sentence of not less than one nor more than five years, it at once commuted the sentence to four months in the county jail.
And, furthermore, that appellant and her counsel also understood the application for leniency to be an application for commutation of sentence rather conclusively appears from the fact they at no time gave the trial court the slightest hint appellant's application for leniency was, in reality, an application for a parole, and not for commutation of sentence, or that the court had misunderstood the nature of her application.
I come now directly to a consideration of the question as to whether, where, as in the case at bar, an application is made for commutation of sentence and the application is granted upon a showing made by the applicant, applicant thereby waived the right to appeal; and, further, and in connection with that question, if the right to appeal is not waived, is the appeal limited to determining whether the trial court did or did not, in granting the application, abuse the sound, legal discretion vested in it by statute?
Respondent contends "the legislature intended to make it optional with a convicted defendant either to appeal from the judgment or to accept it and seek clemency at the hands of the court, and did not intend that such a defendant might pursue both courses in a case where such clemency should in fact be obtained upon his voluntary application, before appealing," citing State v. Yockey,
While State v. Yockey, supra, was decided prior to the amendment of the statute under consideration (Chapter 14, 1943 Session Laws, page 43), the amendment in no *286
way affects the decision insofar as the question under discussion is concerned, in that the only difference between the old statute and the new, on the question of the exercise of sound, legal discretion, is that under the old the court was authorized to act on its own motion and under the new, jurisdiction to act is set in motion by the application of the defendant; and, further, and notwithstanding the statute (Section
It must be kept in mind the record in the instant case shows appellant did not make an application for either a pardon or parole. Instead, and as also shown by the record, she made an application for commutation of sentence, submitting documentary evidence in support thereof. It thus appears the case at bar and State v. Yockey, supra, are identical in that both an application for commutation of sentence was made and documentary evidence submitted in support of the application. In State v. Yockey, supra, it was held the trial court, under the evidence submitted in support of the application for commutation of sentence, did not exercise the discretion (sound, legal) vested in it by statute (Section
It must also be kept in mind respondent's motion, in the instant case, as above pointed out, presents two questions for decision:
(1) Did appellant, by making an application for commutation of sentence, waive the right to appeal?
(2) If the right to appeal is not waived, is the appeal limited to determining whether the trial court did, or did not, abuse the sound, legal discretion vested in it by law by granting the application?
Section
Furthermore, the record shows appellant remained silent when the trial court commuted her sentence. This court held in Shaddy v. Daley,
There is neither reason nor justice in permitting a litigant "to remain silent * * * with a view to accepting the benefits of a judgment if he wins and of having it vacated and set aside if he loses."