The opinion of the court was delivered by
Thе appellant was taken before the district court of Leavenworth county on an information signed by S. W. Chase, warden of thе penitentiary, charging that on the 3d day of July, 1893, the defendant was lawfully confined in the state penitentiary upon a sentencе of six years from the 11th day of October, 1892, by the district court of Sumner county, for the crime of burglary and larceny, and that on the 3d day of July he unlawfully escaped from the penitentiary. This information is filed under § 28, chapter 152, of the Laws of 1891, entitled “An act in relation tо the state penitentiary.” The section reads as follows:
“Sec. 28. That in case any convict shall escape from the penitentiary, or from the custody of any officer, or make an attempt to so escape, or shall join in any mutiny, or shаll make an attempt at mutiny, or in any manner do any act to cause others to mutiny, while in confinement in the state penitentiary, or while in the custody of any officer, the said convict shall be taken by the warden before the district court of Leavenwоrth 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 convict shall be sеntenced by the court to confinement in the state penitentiary for the full term for which he or she was*680 sentenced by the cоurt before whom he or she was convicted and undergoing sentence at the time of the violating the provisions of this sectiоn: Provided, That no limitation shall bar proceedings under this section.”
A motion was made to quash the information, and this motion was sustained by the district court.
The question presented is as to the constitutionality of the provisions of §28; and, first, do they come fairly within the scopе of the title to the act? The title appears to be broad enough to cover any matter directly relating to the рenitentiary and the management thereof. Under it, the legislature might undoubtedly provide rules and regulations covering the conduct of the inmates, and punishment for an infraction of them. But this section goes farther, and provides not merely punishment for escаpes, mutinies, etc., but undertakes to establish a special procedure, by which jurisdiction is given to the district court of Leavеnworth county alone to proceed on an information filed by the warden of the penitentiary, instead of the county attorney, to hear complaints of violations of this section, and thereupon, if the charge be sustained, to pass sentеnce on the defendant. It is urged that the section does not authorize nor contemplate a trial by jury, and that it is thereforе violative of another provision of the constitution. The section is entirely silent as to the mode of trial. It simply says:
“If the chаrge be sustained, the time said convict had served in the penitentiary prior to such act as charged shall not be countеd as any part of the term of his sentence, but the said convict shall be sentenced by the .court to confinement in the statе penitentiary for the full term for which he or she was sentenced by the court.”
No reference whatever is made to the code of criminal procedure, under which parties charged with crime are originally tried. It would only be by a strained construсtion, deemed necessary to uphold a wholesome enactment, that it could be said that such a section as this contemplated a trial by jury in the usual manner. We think the legislature had no such
Thе section is open to other serious constitutional objections. Its provisions do not commend themselves to our sensе of justice. The punishment required to be imposed is not to be measured by the offense committed, but is made to depend wholly оn 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 originаl offense, and, as a punishment for the escape, or mutiny, to reimpose the sentence given by the court for his prior сrime; so it may happen under this section, that two men attempting or effecting an escape from the penitentiary оn the same day in concert, under precisely the same circumstances and with exactly equal guilt, would receive wholly diffеrent 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 20 years, would be sentenced to a further confinement for that number of years. Is not this, in effect, not merely plаcing a defendant twice in jeopardy for the same offense, but in fact punishing him twice? Can this be said to be an impartial administrаtion of justice? Can it be said to be affording to all individuals the equal protection of the laws ? The inher-