Opinion
July, 1904.
Benjamin F. Tracy, L. Laflin Kellogg and Abram J. Rose, for relator.
Robert C. Taylor and Henry G. Gray, assistant district attorneys, for respondent.
The offense of which the relator was convicted was committed by him in 1901. He was sentenced on the 17th of April, 1903, to pay a fine and to a term of not less than one year nor more than one year and nine months imprisonment in a State prison. This was an indeterminate sentence. It is the law that the term of a sentence imposed upon any person convicted of a crime must be so limited as to expire during the months of April, May, June, July, August, September or October. It was also the law of this State at the time the relator committed the offense that any person confined in a State prison on conviction of a felony, where the term equals one year, may earn for himself a commutation of his sentence of two months for the first year, and two months for the second year.
After the commission of the offense by the relator, and before his sentence on April 17, 1903, there was enacted chapter 137 of the Laws of 1903, which went into effect on the sixth of April of the same year.
The effect of this law was to deprive convicts confined under an indeterminate sentence of the right to earn a commutation. It is claimed by the prisoner's counsel that this law is applicable to him, while the district attorney contends that it is ex post facto as to the relator because his offense was committed before its passage. On the previous argument the district attorney conceded that the law was not ex post facto as to the relator, so that that question was not then presented for decision. If the law of 1903 applies to the defendant, then he is entitled to no commutation whatever, and his sentence of one year and nine months will expire in January, 1905, which is contrary to law. This illegality in the expiration of the prisoner's term during a winter month, it is contended by his counsel, makes void the whole sentence of imprisonment, and entitles the relator to an immediate discharge.
If, however, the law of 1903 is not applicable to the relator, then he is entitled to a commutation under the law as it existed when he committed the offense, and such commutation of his sentence will end his term in the month of October in conformity to the law.
It is the settled law of this State, that a statute which deprives the accused of any substantial right which he possessed when the offense was committed or which after that time changes the punishment of his offense, is as to him ex post facto.
If the prisoner had been tried and sentenced at any time after December, 1901, when the offense was committed and before April 6, 1903, when the law took effect, it must be conceded that he would have been entitled to a commutation of his sentence for good conduct in States prison. Such a right to earn a diminution of his term by his own act is a substantial one, of which by a law passed subsequent to the commission of the offense he cannot be deprived. Murphy v. Commonwealth, 172 Mass. 264; Hartung v. People, 22 N.Y. 105, 106.
The commanding judicial decisions by which statutes providing for the punishment of crime have been construed, have treated such laws as intended to deal with future offenses and not to fit past ones. Any other rule would afford opportunity and temptation under one guise or another for the enactment of laws by which the punishment of some special offense or special offendor might be changed after the crime was committed, which would necessarily lead to intolerable discrimination and oppression.
It is the law that existed when the offense was committed that Adams has violated, and it is the punishment for such offense as declared by that law that he should receive.
The sentence imposed by Mr. Justice Scott under the law as it existed when the offense was committed was legal, and the commutation to which he is entitled will cause his term to expire in October in accordance with law.
The writ is dismissed, and the application for stay and bail denied.
Writ dismissed and application for stay and bail denied.