Thompson v. Harris, Warden. Demmick v. Same , 106 Utah 32 ( 1943 )

LARSON, Justice

(concurring specially).

I concur, and desire to add two further matters that support the reasoning of the opinion. The holding that the Habitual Criminal Act was not repealed by implication by the Indeterminate Sentence Law, is further shown and fortified by the fact that the legislature of 1913, which enacted the indeterminate sentence law, also amended Title 57 of C. L. Utah 1907, which dealt with the Board of Pardons and the parole of prisoners. One section, 1686x18, dealing with paroles of prisoners generally was repealed and a new section enacted on that subject; but Section 1686x17, dealing with paroles, or permits to habitual criminals to be at liberty was not amended or repealed, and appears in C. L. U. 1917, as section 4334, and was carefully preserved in the statutes until the revision of 1933, when it was merged in the general section dealing with termination, commutation and parole of prisoners.

When the Indeterminate Sentence Law 'was enacted in 1913, the legislature provided that the court should sentence felons, except for murder or treason, to the state prison, which “sentence shall be without limit as to time.” (Italics added.) But the law provided that imprisonment under such sentence should not exceed the maximum term provided by law for the offense. Chap. 100 Laws of Utah 1913. Also Sec. 9062, C. L. U. 1917. This in effect did away with the provisions in the statute referring to minimum period of imprisonment, and took out of the commitments any refer ence to maximum or minimum provisions. In 1919 (L. of U. 1919, - Chap. 182) the legislature amended the section to provide that the sentence of the court should be “for a period of time not less than the minimum and not to exceed the maximum term provided by law for the particular crime.” Thus it was provided that the commitment should show the minimum, as well as the maximum period set out in the penal code. I think the purpose of having a minimum period fixed in the commitment is to make that record itself show the nature of the offense and whether or not it was one that could form part of the basis required for the habitual criminal status. The habitual criminal section provides that

“whoever has been, previously twice convicted of crime, sentenced and committed to prison * * * for terms of not less than three years each * * (Italics added.) U. C. A. 1943, 103-1-18.

The requisites to show the status of being an habitual criminal may then be proved and established by the commitments themselves. This seems to be further borne out by the provisions of Section 105-36-20 U. C. A. 1943, which section was enacted in its present form in 1919 — L. of Utah 1919, page 353. It provides that the sentence and judgment shall be for a period of not less than the minimum nor more than the maximum. It then declares that it shall in effect be a sentence for the maximum, unless sooner terminated or commuted as provided by law; a power then and now lodged in the Board of Pardons. The section also provides that such sentence shall be construed and held to be a sentence for a term not less than the minmum. Since the Board of Pardons is granted specific authority to commute or terminate any sentence at any time from the day of commitment, the only purpose for which it should 'be construed and held to be a sentence for a term not less than the minimum would be to fix it as a term which could or could not be the basis for putting one in the status of being an habitual criminal.