60 Kan. 664 | Kan. | 1899
This is an appeal from á conviction of the offense of what is commonly designated as “statutory rape” ; that is, of carnally knowing a female under eighteen years of age, without force and not against her will. Several claims of error are made : (1) That the court lost jurisdiction to try the case because there had been a continuance of it from one term to the succeeding one when the defendant was not present in court; (2) that a comparison of the testimony given upon the preliminary examination and upon the trial proper showed that the defendant was convicted of an offense which the prosecutrix did not have in her mind when she swore to the complaint and about which she did not testify upon the preliminary trial, wherefore the defendant did not have a preliminary trial for the offense of which he was convicted; (3) that the testimony showed that the offense of which the defendant was convicted was barred by the statute of limitations ; (4) that two like offenses were testified to under an information containing a single count and charging but a single offense, and between which the state was not required to elect for purposes of conviction; (5) that the court erred in certain of its instructions ; (6) that prejudicial evidence was erroneously admitted. We have examined all of these claims of error. None of them possesses any merit whatever. They are all predicated upon either partial or mistaken views of the case.
It would serve no useful purpose to con over the record for the purpose of showing wherein counsel for appellant has fallen into error. One question, however, deserves to be noticed. It raises the con
‘ ‘Any person between the ages of sixteen and twenty - five who shall be convicted for the first time of any offense punishable by confinement in the state penitentiary may in the discretion of the trial judge be sentenced either to the state penitentiary or to the Kansas State Industrial Reformatory; and any person who upon such conviction shall be sentenced to imprisonment in the Kansas State Industrial Reformatory shall be imprisoned according to this act, and not otherwise, a'nd the courts of this state imposing such sentence shall not fix a limit of duration thereof. The term of such imprisonment of any person so convicted and sentenced shall be terminated by the managers of the reformatory as authorized by this act; but such imprisonment shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced.”
Several sections succeeding this outline a system of punitory and reformatory discipline, the administration of which is confided to a board of managers. This system among other things provides for a record of merits and demerits in the inmates, and for parole privileges to those of exemplary conduct. Section 20 reads as follows :
“When it appears to the said managers that there is a strong or reasonable probability that any prisoner*667 •will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society, then they shall issue to such prisoner an absolute release from imprisonment. But no other petition or other form of application for the release of any prisoner shall be entertained by the managers. Nothing herein contained shall be construed to impair the power of the governor to grant a pardon or a commutation of sentence in any case.”
The punishment inflicted upon an offender sentenced to the reformatory under this act is the kind commonly spoken of as “indeterminate,” and it is assailed by counsel for appellant as violative of that constitutional provision which vests judicial power in the courts, and also that one which vests the pardoning power in the governor. Similar acts have been for the same reason drawn into question in other courts but have been approved by a great preponderance of the authorities, and by a cogency and strength of reasoning entirely satisfactory to us. (The State, ex rel. Attorney-general, v. Peters, 34 Ohio St. 629, 4 N. E. 81; Conlon’s Case, 148 Mass. 168, 19 N. E. 164; Miller v. The State, 149 Ind. 607, 49 N. E. 894; The People, ex rel., v. State Reformatory, 148 Ill. 420, 36 N. E. 76; George v. The People, 167 Ill. 447, 47 N. E. 741; contra, People v. Cummings, 88 Mich. 249, 50 N. W. 310.)
It is undeniably true that the sole power to provide for the punishment of offenders belongs to the legislature. It alone has the power to define offenses and affix punishments. Its authority in these respects is exclusive and supreme. Courts are empowered only to ascertain whether an offense has been committed, and if so to assess punishment, wdthin the terms of the law, for its commission. It cannot be doubted that the legislature, in virtue of its exclusive and
Under the statute quoted, if rightly construed, the sentence of the appellant was to the maximum punishment, so far as duration was concerned, which the law prescribed for the offense of which he was convicted. The judge did not say so, but the law said so, but at the same time it provided conditions under which he can secure an earlier discharge. If the law had provided that the period of punishment prescribed by it, or by the sentence of the court, might be extended in duration, or made more onerous, in the discretion
“A pardon reaches both the punishment prescribed for the offense and the guilt of the offender, and when the pardon is full it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights — it makes him, as it were, a new man, and gives him a new*670 credit and capacity.” (Ex parte Garland, 4 Wall. 333, 380.)
“The doctrine of the authorities is, that ‘a pardon reaches both the punishment prescribed for the offense and the guilt of the offender,’ and that ‘ it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as. if he had never committed the offense.’ ‘ If granted after conviction, it removes the penalties and disabilities and restores him (the convict) to all his civil rights ; it makes him, as it were, a new man, and gives him a new credit and capacity.’ (Ex parte Garland, 4 Wall. 333, 380; United States v. Padelford, 9 id. 531; United States v. Klein, 13 id. 128; Carlisle v. United States, 16 id. 147; Knote v. United States, 95 U. S. 149.) In the case last cited it is said that ‘ a pardon is an act of grace by which an offender As released from the consequences of his offense, so far as such release is practicable and within the control of the pardoning power, or of officers under its direction.’ ‘In contemplation of law, it so far blots out the offense that afterwards it cannot be imputed to him to prevent the assertion of his legal rights.’ ‘A pardon of treason or felony, even after an attainder, so far clears the party from the infamy and all other consequences thereof that he may have an action against any who shall afterwards call him traitor or felon ; for the pardon makes him, as it were, a new man.’ (Bac. Abr., tit. Pardon [H].) ‘ There is only this limitation to its operation : it does not restore offices forfeited, or property or interest vested in others, in consequence of the conviction and judgment.’ Id.” (Jones v. Board of Registrars, 56 Miss. 766, 31 Am. Rep. 385.)
A pardon in its primary, and we think according to the above authorities its legal sense, is, as above defined, simply the remission of guilt. rThe effect of a pardon is to release from confinement; to restore to the status of citizenship and to the enjoyment of civil rights. Mere release from confinement therefore is not a pardon, and none of tlie effects of a pardon other
The law allowing releases from the state reformatory before the expiration of the sentence, which, under the statute as rightly construed, is the maximum period of time, is of a kind with that which allows releases from the state penitentiary before the expiration of the period of sentence. In the former case it is made by the board of managers of the state reformatory, in view of the good conduct of the prisoner as shown by the record ; in the latter case it is made by the warden,' in view of the same conduct as shown by the same kind of record. In the former case the board of managers establish a system under which they determine the number and character of credit marks to be earned by a prisoner a-s a condition of release ; in the latter case the law more largely determines it than do the prison officials ; but in both cases the essential thing, to wit, what is good conduct entitling the prisoner to credit marks, is left, and left of necessity, to the managing officers of the respective institutions. The law having conferred upon them the power to mitigate punishments — to shorten terms of confinement — not to adjudge and condemn to imprisonment, it cannot be said to be judicial; and this power not being the power to remit guilt nor to restore to civil rights, it is not the executive power to pardon. It is administrative merely.
Objection is made that there is nothing in the record showing the appellant to be over sixteen years of age nor under that of twenty-five, nor that he had not been previously convicted of a penitentiary offense,
The judgment of the court below will be affirmed.