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Ex Parte Melosevich

April 1913

IN THE MATTER OF THE APPLICATION OF TRIFKE MELOSEVICH FOR A WRIT OF HABEAS CORPUS.


H. Pilkington, for Petitioner.

Geo. B. Thatcher, Attorney-General, and E. T. Patrick, Deputy Attorney-General, for Respondent.

By the Court, Norcross, J.:

This is an original proceeding in habeas corpus. The petition alleges that the applicant is unlawfully confined in the state prison because of the alleged fact that the commitment by virtue of which he is so confined is based upon a void judgment. Applicant was regularly indicted, tried, and convicted of the crime of grand larceny. Based upon the jury's verdict of guilty, on August 14, 1912, judgment was entered, upon the order of the court, “that defendant, Trifke Melosevich, be confined in the penitentiary at Carson City, Nevada, for the period of not less than two years and not to exceed three years.” The commitment was in accordance with the judgment as entered.

1. The statute of this state provides that a person convicted of the crime of grand larceny “shall be punished by imprisonment in the state prison for any term not less than one year nor more than fourteen years.” (Rev. Laws, 6638.)

Section 7260, Rev. Laws, provides: “Whenever any person shall be convicted of any felony for which no fixed period of confinement is imposed by law, the court shall, in addition to any fine or forfeiture which he may impose, direct that such person be confined in the state prison for a term not less than the minimum nor greater than the maximum term of imprisonment prescribed

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by law for the offense of which such person shall be convicted; and where no minimum term of imprisonment is prescribed by law, the court shall fix the minimum term in his discretion at not less than one year nor more than five years; and where no maximum term of imprisonment is prescribed by law, the court shall fix such maximum term of imprisonment.”

Section 7261, Rev. Laws, provides: “The board of pardons may at any time after the expiration of the minimum term of imprisonment for which such prisoner was committed thereto, direct that any prisoner confined in such institution shall be released on parole upon such terms and conditions as in their judgment they may prescribe in each case.”

The sections above quoted relative to an indefinite or indeterminate sentence were incorporated into the law of this state for the first time in the revised criminal practice act passed by the legislature of 1911, which took effect January 1, 1912. Under the old statute, trial judges in all cases were required to impose a definite sentence. Some misconception appears to have existed for a time in the minds of a number of trial judges as to how sentences should be imposed under the new law. In a number of cases that have been under consideration by the board of pardons, sentences were imposed like that now in question. The court, upon imposing sentence, had assumed that it had discretion to fix a greater minimum or a less maximum sentence than the minimum and maximum sentence prescribed in the statute for the particular offense, for the commission of which judgment was imposed. This was not in accordance with the purpose designed to be accomplished by the indeterminate or, more properly speaking, the indefinite sentence law.

Under the law which had existed for centuries in English-speaking countries, and until the adoption, in recent years, of certain reforms in criminal procedure, the imposition of definite sentences resulted in great inequality in the term imposed by different judges for similar offenses. Whether for a certain offense the court

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would have imposed a sentence of one year, five, ten, or twenty years, would depend, to a considerable extent, upon the viewpoint of the individual judge who happened to have tried the case. If the judge happened to be of the opinion that severity of punishment was the best method of suppressing crime, a heavy sentence would be imposed. If it happened to fall to the lot of the offender to be tried before a judge inclined to the view that a greater degree of leniency would accomplish the desired result, a comparatively light sentence would be imposed.

One purpose of the indeterminate sentence law was to minimize the personal equation of the trial judge. Exact justice in the punishment of an offender is probably unattainable. If, however, from the light of all facts and circumstances having a bearing upon a particular case, a sentence, say of two years, would generally be accepted as a just measure of punishment to be imposed, but it appeared that, because of the view of the case peculiar to the mind of the trial judge who happened to have the say, a sentence of five or ten years is imposed, there has been a miscarriage of justice which only some pardoning power could remedy.

As said by Chief Justice Winslow, of the Supreme Court of Wisconsin, in a recent address delivered before the American Institute of Criminal Law and Criminology, of which organization he is the president: “The court should have power to impose an indeterminate sentence, leaving the question of length of term to a board acting on accurate knowledge of the criminal's history, behavior, and apparent progress toward reformation.” Again he says: “Power should be vested ...


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