State v. Nemier , 106 Utah 307 ( 1944 )

I concur. Should the construction of 103-7-12, U.C.A. 1943, contended for by the state, be adopted rather than that herein given, anomalous situations, not reasonably to be ascribed to be within the contemplation of the legislature by its action in passing the indeterminate sentence statute, would result. For example, under the statutes, one convicted of murder in the second degree may be punished by imprisonment for a definite number of years less than life; though he may be sentenced to prison for life. 103-28-4, U.C.A. 1943. Lee Lim v. Davis,75 Utah 245, 284 P. 323, 76 A.L.R. 460. But one convicted of assault with intent to murder is punishable by imprisonment for an indefinite term of five years to life. 103-28-14, U.C.A. 1943. Hence, if A commits an assault upon C with intent to murder the latter, the sentence prescribed by statute to be pronounced by the trial court is a life sentence under the construction of 103-7-12, U.C.A. 1943, urged by the State. But if B murders C and the jury returns a verdict of second degree murder, the court may sentence B to a term of years less than life. Should the court in the situation last suggested pronounce a sentence of 25 years, and in the assault case pass sentence as prescribed by law; and thereafter the two convicts commit an assault of the character which comes within the provisions of 103-7-12, U.C.A. 1943, upon conviction of A the court has no discretion but to sentence him to death; but B cannot properly be charged under 103-7-12 since he is not undergoing a life sentence, and upon his conviction under 103-7-11 the limit of the court's power is to sentence him to a term of from 3 to 20 years.

Again, assume that D is convicted of robbery and he is sentenced and committed to prison for a term of "five years to life"; which is his first conviction of felony. Then assume that E is convicted of an attempt to kill by poison. He is sentenced and committed for a term of 5 to 20 years, pursuant to 103-28-13, U.C.A. 1943. Assume also that he had theretofore served a term of imprisonment for a similar offense. Should such two convicts commit an assault such as that here charged, upon conviction D must be sentenced to death, but E cannot be.

The foregoing examples are not cited to suggest that because certain results attend upon a given statutory construction which do not comport with the court's conception of equal justice, some contrary construction will be adopted, though it does violence to the language of the statute. The statute here construed being susceptible of more than one construction, instances in which certain results follow upon a proposed construction are set out to support the reasons given in the opinion of the court for adopting the alternative construction.