State v. Pardon
157 S.E.2d 698
N.C.
1967
Check Treatment
SHARP, J.

In his brief, appellant brings forward only his exception to the eight-months’ sentence. He thereby abandoned all others. Rule 28, Rules of Practice in the Supreme Court of North Carolina.

At the time defendant was sentenced on 2 May 1967, G.S. 14-336(11) (1965 Cumulative Supplement) made the third offense of public drunkenness within any twelve-months’ period a general misdemeanor punishable within the discretion of the court. On that date, a sentence of eight months, being within the two-year maximum sentence permitted for misdemeanors, was not cruel and unusual punishment. State v. Robinson, 271 N.C. 448, 156 S.E. 2d 854; State v. Driver, 262 N.C. 92, 136 S.E. 2d 208; State v. Farrington, 141 N.C. 844, 53 S.E. 954. While the appeal in this case was pending, however, the legislature by Chapter 1256 of the Session Laws of 1967, rewrote G.S. 14-335 to make the punishment for public drunkenness uniform throughout the State. In doing so, it reduced the maximum prison sentence of thirty days to twenty days for the first offense. For any subsequent offense within a twelve-months’ period, it made the punishment a fine of not more than $50.00 or imprisonment of not more than twenty days in the county jail or commitment to the custody of the Director of Prisons for an indeterminate sentence of not less than thirty days and not more than six months. It also made chronic alcoholism an affirmative defense to the charge *75 of public drunkenness and empowered the court to retain jurisdiction over the alcoholic for a period of two years for the purpose of supervising his treatment for the disease.

The effect of Chapter 1256 was not to repeal the statute against public drunkenness, G.S. 12-4, but — as of 6 July 1967 — to reduce and make uniform the maximum punishment for the offense. See Houston v. State, 143 Tex. Crim. 460, 158 S.W. 2d 1004. The question posed by this appeal, therefore, is whether the changes in the law, which occurred while defendant’s appeal was pending, inure to his benefit.

The rule is that when a criminal statute is expressly and unqual-ifiedly repealed after the crime has been committed, but before final judgment — even though after conviction — , no punishment can be imposed. State v. Perkins, 141 N.C. 797, 53 S.E. 735; United States v. Chambers, 291 U.S. 217, 78 L. Ed. 763, 54 S. Ct. 434. A judgment is not final as long as the case is pending on appeal. The headnote in State v. Nutt, 61 N.C. 20, succinctly states the rule: “If, pending an appeal in a criminal case, the statute authorizing the indictment is repealed, judgment will be arrested.” In State v. Williams, 97 N.C. 455, 2 S.E. 55, the defendant was convicted in September 1886 of selling spirituous liquor within five miles of Bethel Church and fined five dollars. From this judgment he appealed to the Supreme Court. On 7 March 1887, while the appeal was pending, the legislature narrowed the limits of the prohibited territory to two miles from that church. In ordering the judgment arrested, Smith, C.J., speaking for the Court, stated the reason for the rule:

"So that it is not criminal to do now what was done before the repeal and whereof he is convicted, and no sentence upon such a finding can be pronounced. The act punished must be criminal when judgment is demanded, and authority to render it must still reside in the court. The recent statute has no saving clause, continuing it in force until pending prosecutions are ended, and in withdrawing the power, the act arrests all further action in the matter.” Id. at 456, 2 S.E. at 56.

Accord, In Re Estrada, 63 Cal. 2d 740, 48 Cal. Rptr. 172, 408 P. 2d 948 ; 24 C.J.S. Criminal Law § 1544 (1961).

Statutes are frequently adopted which change the degree and kind of punishment to be imposed for a criminal act. Where the punishment is increased, and the old law is not expressly or impliedly repealed by the new, which is prospective only in its application, punishment will be imposed under the prior law. State v. Mull, 178 N.C. 748, 101 S.E. 89; State v. Broadway, 157 N.C. 598, 72 S.E. 987; State v. Perkins, supra; State v. Putney, 61 N.C. 543. Any statutory *76 attempt to increase the punishment of a crime committed before its enactment is, of course, invalid as ex post facto legislation. 21 Am. Jur. 2d Criminal Law § 578 (1965). In the words of Chase, Justice, ex post facto laws are:

“1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed. 648, 650.

“The rule is, not that the punishment cannot be changed, but that it cannot be aggravated.” State v. Kent, 65 N.C. 311, 312; 16 Am. Jur. 2d Constitutional Law §§ 400, 403 (1964). See Sekt v. Justice’s Court, 26 Cal. 2d 297, 159 P. 2d 17; 167 A.L.R. 833. The legislature may always remove a burden imposed upon citizens for State purposes. And, when this occurs pending an appeal, absent a saving clause, a manifest legislative intent to the contrary, or a constitutional prohibition, the appellate court must give effect to the new law. State, use of Mayor & C. C. of Balto., vs. Norwood, et. al., 12 Md. 195. See State v. Williams, 45 Am. Dec. 741 (S.C.), 2 Richardson’s Law 418; Moorehead v. Hunter, 198 F. 2d 52 (10th Cir.) (habeas corpus proceeding). Since the judgment is not final pending appeal “the appellate court must dispose of the case under the law in force when its decision is given, even although to do so requires the reversal of a judgment which was right when rendered.” Gulf, Col. & S. F. Ry. v. Dennis, 224 U.S. 503, 506, 56 L. Ed. 860, 861, 32 S. Ct. 542, 543.

An amendatory act which imposes a lighter punishment can be constitutionally applied to acts committed before its passage. In re Estrada, supra. After a defendant, who did not appeal, has begun serving his sentence, a change or repeal of the law under which he was convicted does not affect his sentence absent a retrospective provision in the statute. Orfield, Criminal Procedure from Arrest to Appeal 589 (1947). When, however, the law under which a defendant was convicted is amended pending appeal so as to mitigate the punishment, it is logical to assume that the legislature intended the new punishment, which it now feels fits the crime, to apply whenever possible. This is especially true when the legislation is enacted *77 for the purpose of combatting alcoholism and rehabilitating alcoholics. As Peters, J., speaking for the court in In Re Estrada, supra, said:

“When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. . . . [T]o hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” 63 Cal. 2d 740, 745, 48 Cal. Rptr. at 175, 408 P. 2d at 951.

In In Re Estrada, supra, the Supreme Court of California reconsidered and disapproved the four-to-three decision in People v. Harmon, 54 Cal. 2d 9, 4 Cal. Rptr. 161, 351 P. 2d 329, that the punishment in effect when a crime is committed prevails. In doing so it relied upon the rationale forcefully expressed in People v. Oliver, 1 N.Y. 2d 152, 151 N.Y.S. 2d 367, 134 N.E. 2d 197:

“This application of statutes reducing punishment accords with the best modern theories concerning the functions of punishment in criminal law. According to these theories, the punishment or treatment of criminal offenders is directed toward one or more of three ends: (1) to discourage and act as a deterrent upon future criminal activity, (2) to confine the offender so that he may not harm society and (3) to correct and rehabilitate the offender. There is no place in the scheme for punishment for its own sake, the product simply of vengeance or retribution. . . . A legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance. As to a mitigation of penalties, then, it is safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts.” Id. at 160, 151 N.Y.S. 2d at 373, 134 N.E. 2d at 201-02.

*78 In addition to mitigating the punishment, the provisions of Chapter 1256, G.S. 14-335 (c), make chronic alcoholism a defense to the crime of public drunkenness. Thus, an accused who is able to establish this affirmative defense exonerates himself of crime and subjects himself to enforced rehabilitative treatment. That defendant is, and was at the time of his trial, a chronic alcoholic is unquestioned on the record before us. If he were not, however, he would be entitled to have his sentence decreased in conformity with G.S. 14-335 (1967). A jortiori, notwithstanding his plea of guilty, under the facts here disclosed, he is also entitled to the benefit of the change in the law which would allow him to prove that his conduct on 13 April 1967 was not criminal. • ■

The judgment below is vacated, and the case is remanded to the Superior Court for a trial de novo in which defendant will be entitled to prove, if he can, the affirmative defense of chronic alcoholism.

New trial.