Daily capital journal. (Salem, Oregon) 1903-1919, 1910-03-15

Declaring the law under which A.
B. Smith was sentenced to an indie
terminate sentence in the state pri-
son, on the charge of assault with
intent to commit robbery, to be an
ex-post facto law, the supreme
court this morning reversed the de-
cision of Judge Burnett, and direct
ed that the defendant be discharged
from custody.
Smith was indicted on the charge
of assault with intent to commit
robbery in April, 1909, and the Of
fense was alleged to consist in the
entering of the Hinges jewelry store
with intent to commit robbery. He
was convicted and sentenced in July
of the same year and from this con-
vtction his attorneys, Carson &
Brown and Kaiser and Pogue took
an appeal to the supreme court of
the state The law in force at the
time of the conviction of Smith pro-
vided that any persons found guilty
of this offense should be punished
by a sentence in the state prison
for not less than five years and not
more than 20 years. During his in
generation the legislature passed an
act amending this law and which
provided that the penalty for the Of
fense should not be less than 10
years and made the maximum sem
tence life Imprisonment, and as this
amendment repealed the old law,
the only law in force at the time of
Smiths sentence was the new law
which had been passed after the
commission of the crime. The court
held this to be an ex-post facto law
and it places Smith in a position
where there was no law on the stat
ute books under which he could be
tried, and so he will escape all pun
ishment for the crime of which he
was convicted.
In passing upon the case the
court said: "The limitation placed
upon the court, in imposing sentence
under the act of 1905, neces-
sarily invalidates the sentence
appealed from. But we have
deemed it important that the main
points presented, and above consid-
cred; be determined at this time;
for without a statute under which
some sentence may be imposed, no
further proceeding in the case could
De udu. we are hOI uhlhlhuIul'
however, of the unfortunate and
embarrassing situation in which the
state finds itself; for under Chapter
1886 of the Code, when a criminal
case is reversed, it is incumbent up
on the appellate court, unless a new
trial is ordered, to direct that the
defendant, if in custody be dis
charged. But here no grounds ap-
sah nd q
cause for new trial. The defend
ant has been tried, and under the
most favorable view possible to the
state the irregularity was not in the
trial, but in the application of
penalty after trial; and a re-trial
could not change the situation.
hence would be useless; while the
discharge of the prisoner releases
from the indictment one guilty of
grave offense. However, this mis-
fortune is one for which the law
making department alone is respon
sible And 1t were better that the
accused, under such circumstances,
should escape punishment entirely,
if such must occur. than for the
courts, under the guise of subsery-
ing the ends of justice in particular
INSTANCES, 10 hSouDlG AAiaL AlNg may
rise higher than the law and disre-
gard the plain mandates of both the
Federal and Stat? constitutions.
"It follows that the judgment OF
the trial court must be reversed, and
the defendant discharged from GUS
tody upon this indictment; and il is
so ordered. But We do not wish to
be understood as ordering his re-
lease upon any charges or indiet-
menss, if any. upon which he may
be held, other than robbery, being
armed with a dangerous weapon"
Five Other Gases.
Besides rendering a decision in
the case of the state OF Oregon
against A. b. Smith the supreme
court also rendered decisions in fiye
other cases.
In the case Of w. G. Davis against
Glenn A. Brigham, ct al, case
from Lane county. the decision of
the lower tribunal was affirmed.
This action was brought for the spe-
clfe performance OF contract for
the conveyance Of real property.
The motion for dismissal OF the
case Of the state Of Oregon against
w. f. Douglas was granted. The