State v. Carpenter , 67 Idaho 277 ( 1947 )

Achsa Shryer and Joan Carpenter were jointly informed against, prosecuted and convicted of carrying hacksaw blades to prisoners to aid their escape, in violation 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 19-2501, I.C.A., as amended by the 1943 S.L. Chap. 14, page 43.² Whereupon, the court pronounced judgment as follows: "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 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, 51 Ariz. 544, 78 P.2d 498, 117 A.L.R. 929, 138 A.L.R. 1102, herein there was merely a reduction of the sentence, leniency having been requested by the jury and urged by appellant.

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, 348 Mo. 258,152 S.W.2d 1061, 138 A.L.R. 1154. A contrary holding would mean a defendant could not seek a light sentence, even though recommended by the jury, but must remain silent when sentence is pronounced lest he suffer the loss of appeal on the merits, however erroneous the trial or complete his innocence. Appellant does not question the sentence as such, and no assignment of error challenges the sentence in any particular, hence whether the court abused its discretion in commuting the sentence is not before us. The motion to dismiss the appeal, therefore, is denied.

The general circumstances surrounding the offense of which appellant was convicted 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 Section17-201, subd. 7, I.C.A.³; and that the court erred in refusing certain requested responsive instructions.

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, 32 Kan. 559, 4 P. 1050 at 1054. Appellant testified in open court she participated in purchasing and passing the hacksaw blades into the jail and the evidence is of such a nature as to support the jury in rendering the verdict.

Section 17-201, subd. 7, supra, differs from the common law, 41 C.J.S., Husband and Wife, p. 717, § 222, note 20. Obviously, therefore, cases interpreting or applying the common law or differing statutes are not pertinent.

The instructions given by the court were fully favorable to appellant and sufficiently, substantially and adequately covered these phases of the controversy.⁴ State v. Sayko, 37 Idaho 430, 216 P. 1036, and 71 A.L.R. 1116.

Hence, there was no error in rejecting the requested instructions. State v. Fleming, 17 Idaho 471, at page 489, syl. 9, 106 P. 305; State v. Reel, 19 Idaho 463, at page 464,113 P. 721; State v. Willis, 24 Idaho 252, at page 264, syl. 5,132 P. 962; State v. O'Neil, 24 Idaho 582, at page 600, 135 P. 60; State v. Curtis, 29 Idaho 724, at page 734, 161 P. 578; State v. Petrogalli, 34 Idaho 232, at page 237, 200 P. 119; State v. Black, 36 Idaho 27, at page 34, 208 P. 851; State v. Sayko, supra; State v. Cosler, 39 Idaho 519, at page 524, 228 P. 277; State v. George, 44 Idaho 173, at page 177, 258 P. 551; State v. Pasta, 44 Idaho 671, at page 678, 258 P. 1075; State v. Stevens, 48 Idaho 335, at page 350, 282 P. 93; State v. Farris,48 Idaho 439, at page 446, 282 P. 489; State v. Copenbarger,52 Idaho 441, at page 456, 16 P.2d 383; State v. Brown, 53 Idaho 576, at page 580, 26 P.2d 131; State v. Richardson, 56 Idaho 150, at page 158, 50 P.2d 1012; State v. Howard, 57 Idaho 381, at page 385, 65 P.2d 764; State v. Vanek, 59 Idaho 514, at page 520, 84 P.2d 567; State v. Frank, 60 Idaho 774, at page 781,97 P.2d 410.

Consequently, the judgment of conviction is affirmed.

BUDGE and MILLER, JJ., and SUTPHEN, D.J., concur.

¹ "Every person who carries or sends into a prison anything useful to aid a prisoner in making his escape, with intent thereby to facilitate the escape of any prisoner confined therein, is guilty of a felony." Sec. 17-807, I.C.A.

² "Whenever any person shall have been convicted, or enter a plea of guilty in any 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 application by the defendant, commute the sentence, confine the defendant in the county jail, * *." Sec. 19-2501, I.C.A.

³ "All persons are capable of committing crimes, except those belonging to the following classes:

* * * * * * *

"7. Married women (unless the crime be punishable with death) acting under the threats, command, or coercion of their husbands. * * *." Section 17-201, subd. 7, I.C.A.

⁴ "You are instructed that if you find from the evidence that the defendant, Joan Carpenter, and Clyde Pease mutually assumed the marital rights, duties and obligations and that the parties held themselves out to the world as husband and wife and cohabitated together as such, both of said parties having the legal right to contract marriage, then such facts are sufficient to establish the relationship of husband and wife even though said parties did not have a marriage license or enter into a formal marriage ceremony.

"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.