State v. Evans

KEETON, Justice

(dissenting).

The constitutionality of the statute challenged here, Sec. 18-6607 I.C. (lewd conduct with minor or child under 16) set forth in the majority opinion was argued to this Court by all parties who appeared, under the assumption that life imprisonment upon a conviction was the mandatory sentence to be imposed. This also is the interpretation placed on it by different district court judges who had occasion to consider it. I view the statute subject to no other interpretation; and that one who is convicted of its violation must, unless the court *61 suspends judgment, be sentenced to life imprisonment.

Sec. 19-2513 I.C. (indeterminate sentence statute cited in the majority opinion) certainly applicable to the subject now being discussed, is mandatory, and governs the judgment to be entered upon a conviction. There are exceptions to this general rule, for example, where the statute fixing the penalty specifically provides that a life sentence shall be in the discretion of the court. Thus rape, Sec. 18-6104 I.C. permissively authorizes the sentencing judge to fix the punishment at not less than one year. The sentence imposed by the district judge on a conviction of rape, even though it be less than life, is the maximum penalty. Storseth v. State, 72 Idaho 49 , 236 P.2d 1004 ; State v. Linebarger, 71 Idaho 255 , 232 P.2d 669 .

Sec. 18-6607 I.C., now under consideration, contains no provision for a minimum sentence, and by its terms fixes life imprisonment as the sentence to be imposed.

Sec. 19-2513 I.C. clearly provides that the minimum period of imprisonment in the penitentiary for a felony is abolished, and whenever a person is convicted of a felony, the court shall sentence such offender to imprisonment in the penitentiary for a period of time, but stating and fixing in such judgment and sentence the maximum term of imprisonment provided by law, such sentence to be known as an indeterminate sentence.

The maximum term fixed by the statute under consideration, Sec. 18-6607 I.C., is life inmprisonment. It seems to me it necessarily follows that life imprisonment should be imposed on a person convicted of violating its provisions.

If this be so, the majority opinion holds that the statute is unconstitutional, but construes the statute so as to leave the term of imprisonment to be fixed by the district judge. It does not seem to me that Sec. 18-6607 I.C. was so intended, or can be so construed.

The attorney general also contended that the provision of the law challenged was inconsistent with other defined sex offenses, and which were therefore impliedly repealed, so far as covered by the statute under discussion; and contended that if such inconsistent statutes, particularly those that provided a lesser penalty for their violation, were not impliedly repealed, then the statute was, of course, unconstitutional, as not affording equal protection of the law to all persons. With this contention I agree.

The majority opinion further concludes:

“ * * * that conduct of a comparatively innocent nature, such as ‘necking’ or ‘petting’, where a child under 16 is involved, may, in the eyes of some enforcement officers, constitute a violation of this statute. Be that as it may, it is obvious that acts of a more or less trivial nature are within its broad terms. Life imprisonment for such *62 offenses would be cruel and unusual punishment.”

In other words, a boy 18 years of age, or even less, could, under the holding, and coming within the terms of the statute, in the discretion of the trial court, be sent to the penitentiary for life for engaging in a “necking party” with á girl 15 years, 11 months and 29 days old. There is no statute anywhere in the United States, or anywhere else, that has been called to our attention, that contains such a gross injustice. A man of mature age and discretion committing rape with a girl of the same age could, under the cases above cited, be imprisoned 'for a maximum term of one year. See Storseth v. State, 72 Idaho 49 , 236 P.2d 1004 . Other similar comparisons could be given.

Two different persons committing exactly the same offense could, under the statute, be sentenced to different terms of imprisonment in the penitentiary depending on the whim or the wish of the law enforcement officers, or for no reason at all. Such grossly disparaging sentences would not provide all persons with equal protection of the law. A general statute which makes such an arbitrary distinction by prescribing different penalties for the commission of the same act by different persons, and imposing a more severe sentence on one than on the other is clearly unconstitutional and in direct conflict with Art. 1, Sec. 6, Idaho Constitution. See In re Mallon, 16 Idaho 737 , 102 P. 374 , 22 L.R.A.,N.S., 1123.

A long sentence to the penitentiary which is so disproportionate to the seriousness of the act prohibited has been recognized as cruel and unusual punishment in numerous decisions. See State v. Driver, 78 N.C. 423 . In this case the court said “It would seem to be clear that what is greater than has ever before been prescribed or known or inflicted, must be ‘excessive, cruel and unusual’.” See also, Weems v. U. S., 217 U.S. 349 , 30 S.Ct. 544 , 54 L.Ed. 793 , 19 Ann.Cas. 705, and note and collection of cases at 725; McDonald v. Commonwealth, 173 Mass. 322 , 53 N.E. 874 ; Mickle v. Henrichs, D.C., 262 F. 687 ; 15 Am.Jur., Sec. 526, p. 175; Politano v. Politano, 146 Misc. 792 , 262 N.Y.S. 802 .

It is my opinion that because of the majority holding nothing but confusion will follow. Under conditions that will arise, no one can say with any certainty what crime a person should be prosecuted for, or of what crime he is guilty, or when convicted, what sentence should be imposed. Facts that would bring a defendant within the provisions of the lewd conduct act, Sec. 18-6607 I.C., might under certain circumstances and conditions subject him to prosecution for rape (Sec. 18-61011.C.), assault with attempt to commit rape (Sec. 18-907 I.C.), sodomy (Sec. 18-6605 I.C.) and probably other crimes not now apparent.

In numerous circumstances that cannot now be visualized,. it would be practically impossible for a prosecuting officer to determine just what offense an offending per *63 son had committed, or for what crime he should be prosecuted.

It seems to me it is practically impossible, with any degree of certainty, to determine just what conduct is supposed to be prohibited by Sec. 18-6607 I.C. No one who has presented the matter to the Court has agreed with anyone else on what it is supposed to mean, or just what conduct is prohibited and made criminal. The statute itself fixes no standards, nor does it give any definition of its terms. Whether the statute is meant to be in lieu of other criminal offenses coming within its terms, the statute does not say.

Only perpetual confusion will follow attempts to reconcile the statute in question with other criminal laws. If such confusion can ever be harmonized cannot now be foreseen. The judgment sustaining the demurrer to the indictment should be affirmed.