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Ex Parte Prosole

April 1910

IN THE MATTER OF THE APPLICATION OF JOHN PROSOLE FOR WRIT OF HABEAS CORPUS.


A. N. Salisbury and G. W. Shutter-Cottrell, for Petitioner.

R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, for Respondent.

By the Court, Talbot, J.:

Petitioner was indicted by the grand jury of Washoe County for the crime of arson in the second degree, and charged with maliciously and feloniously setting fire to and burning certain goods, wares, and merchandise situated in a building in Reno which were insured with the Globe and Rutgers Fire Insurance Company of the City of New York in the sum of $3,000 against loss by fire, with intent to defraud that company. Trial was had, and the jury brought in a verdict finding him guilty as charged in the indictment, and the court rendered judgment finding him guilty of the crime of arson in the second degree, and ordering that he be punished therefor by imprisonment for a term of four years in the state prison, to which place he was committed, and where he now languishes.

The indictment, trial, and conviction were under section 4712 of the Compiled Laws, being section 58 of the act relating to crimes and punishments: “Every person who shall wilfully burn, or cause to be burned, any building, or any goods, wares, merchandise, or other chattel, which shall be at any time insured against loss or damage by fire, with intent to injure or defraud such insurer, whether the same be the property of such person, or of any other, shall, upon conviction, be adjudged guilty of arson in the second degree, and punished accordingly.” It is alleged that he is unlawfully restrained of his liberty because the district court “acted wholly without jurisdiction in passing judgment upon this petitioner and in sentencing and ordering him to be confined in the Nevada state prison, as aforesaid, for the reason that said section 4712 provides no punishment for the crime charged in the indictment against petitioner and for the charge upon which this petitioner was tried and convicted as aforesaid, and for the reason that the laws of the State of Nevada provide no punishment for the offense charged in the said indictment against this petitioner, and for which petitioner was tried and convicted and sentenced.”

[32 Nev. 378, Page 380]

Has the legislature designated any punishment for the crime for which he was indicted and convicted? Section 4710 of the Compiled Laws provides that every person who shall wilfully and maliciously burn, in the nighttime, any dwelling-house in which there shall be some human being, shall be deemed guilty of arson in the first degree, and shall be punished by imprisonment for not less than two years, and which may extend to life. Section 4711, which directly precedes the one assailed by petitioner, provides that every person who shall wilfully and maliciously burn any dwelling-house, or cause to be burned any kitchen, office, shop, barn, stable, storehouse, warehouse, or other building, or stacks or stocks of grain, hay, cordwood, lumber, or other designated property of the value of $50 or more, “shall be deemed guilty of arson in the second degree, and upon conviction thereof shall be punished by imprisonment in the state prison for a term not less than one year nor more than ten years; and should the life or lives of any person or persons be lost in consequence of such burning, as mentioned in this and the preceding section, such offender shall be deemed guilty of murder, and shall be indicted and punished accordingly.”

If the will of the legislature is apparent, it is the duty of the court to give effect to its intention, and such construction should be placed upon the language of the statute as will give it force and not nullify the manifest purpose of that section, which should be construed in connection with the preceding one. We are unable to conclude otherwise than that by designating in section 4711 that certain acts shall constitute arson in the second degree, and that persons convicted thereof shall be punished by incarceration in the state prison for a term not less than one nor more than ten years, it was, by the provision in the following section that “every person who shall wilfully burn any building, any goods, wares or merchandise, which shall be at the time insured against loss or damage by fire, with intent to injure or defraud such insurer, whether the same be the property of such person or any other, shall, upon conviction, be adjudged guilty or arson in the second degree and punished accordingly,” the intention of the legisla

[32 Nev. 378, Page 381]

ture to make persons committing the acts last designated guilty of arson in the second degree, the same as if these acts had been specified in the previous section among those constituting that crime as there designated, and that the words “shall be adjudged guilty of arson in the second degree and punished accordingly” refer to, and are intended to supply, the same punishment which is provided for that offense in the preceding section, as clearly and fully as if the last section had repeated the language of the former one, providing that offenders upon conviction “shall be punished by imprisonment in the state prison for a term not less than one nor more than ten years.” Any other construction would nullify section 4712 entirely and set aside the evident intention of the legislature contrary to the ordinary rules for construing statutes.

The language assailed and the provision for punishment for the crime of arson in the second degree are the same in sections 4711 and 4712 of our Compiled Laws as in the California statute of 1856 (Cal. Stats. 1856, p. 132; Woods's Digest 1856-1860, 336). In People v. Hughes, 29 Cal. 257, an indictment and conviction for arson in the second degree for burning an insured building with intent to defraud the Hartford Insurance Company was sustained under the section of the statute corresponding to the one under which petitioner was convicted. It was sought to reverse the judgment of the trial court there on other grounds.

In Davis v. State, 51 Neb. 318, 70 N. W. 990, it was said: “A criminal statute is not void for uncertainty which prescribes as a punishment for the doing of a certain act the same punishment that is prescribed for doing another-named act, when the same criminal code defines the latter act and prescribes its punishment.”

As quoted by the Supreme Court of Alabama from Marshall, C. J., in U. S. v. Wiltberger, 5 Wheat. 76 (5 L. Ed. 37): “It is the legislature, not the court, which is to define a crime and ordain its punishment. Though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature; nor is the maxim to be so applied as to exclude from the operation of

[32 Nev. 378, Page 382]

the statute cases which the words in their ordinary acceptation, or in that sense in which the legislature ...


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