Summary
In Moore, the court noted that the objectives of criminal punishment include the protection of society, the deterence of the individual and the public generally, the possibility of rehabilitation, and punishment or retribution for wrongdoing.
Summary of this case from State v. PedersonOpinion
No. 8426.
December 4, 1956. Rehearing Denied January 9, 1957.
APPEAL FROM DISTRICT COURT, THIRD JUDICIAL DISTRICT, ADA COUNTY, M. OLIVER KOELSCH, J.
Carver, McClenahan Greenfield, Givens, O'Leary, Doane Givens, Boise, for appellant.
Graydon W. Smith, Atty. Gen., J.R. Smead, Asst. Atty. Gen., Blaine F. Evans, Pros. Atty., Boise, for respondent.
To refuse to conduct a pre-sentence investigation, and to refuse to hear evidence on the matter of probation requested, is error. State v. Mitchell, 77 Idaho 115, 289 P.2d 315; People v. Donovan, 376 Ill. 602, 35 N.E.2d 54.
Sexual aberration presents a situation calling for special approaches in the field of criminal jurisprudence, and scientific opinion is that incarceration accomplishes none of the legitimate ends of the administration of criminal law. Bowman, Karl M. (Medical Superintendent, Langley-Porter Clinic, California), Sexual Deviation Research, March, 1952. (State of California publication) California Legislature, Preliminary Report of the Sub-committee on Sex Crimes of the Assembly Interim Committee on Judicial System and Judicial Process, 1949. Dunham, H. Warren, (State Department of Mental Health, Lansing, Michigan) Crucial Issues in the Treatment and Control of Sexual Deviation in the Community, A Report, June, 1951. "The function of law in the regulation of sexual conduct," A Note, 29 Indiana Law Journal 539. Karpman, Benjamin (Chief Psychotherapist, St. Elizabeth's Hospital, Washington, D.C.), "Considerations bearing on the problem of sexual offenses," 43 Journal of Criminal Law, Criminology and Police Science, p. 13. Ludwig, Frederick J., "Control of the Sex Criminal", 20 St. Johns Law Review 203 (May 1951). Michigan, "Report of the Governor's Study Commission on the deviated criminal sex offender", (A State of Michigan publication, 1951). Ploscowe, Morris, Sex and the Law, Prentice-Hall, 1951 Rappaport, Walter (Director, The Langley-Porter Clinic) Sexual Deviation Research, March, 1954, Final Report, (State of California publication.) Smith, Charles E., "The Homosexual Federal Offender: A Study of 100 Cases", 44 Journal of Criminal Law, Criminology, and Police Science, 582. Tallman, Frank F., (Director, The Langley-Porter Clinic) Sexual Deviation Research, January, 1953, (State of California Publication.) Tappan, Paul W. (Professor of Sociology and Lecturer in Law, New York University), "Some Myths of the Sex Offender", Federal Probation, June 1955, page 7. Thompson, George M., The Psychopathic Delinquent and Criminal, Charles C. Thomas, Publisher, 1953.
A motion for probation, or to withhold judgment, or to withhold sentence, or to withhold execution of judgment, must be made before judgment is pronounced. If made afterwards, the court has no jurisdiction to consider it. Idaho Code, Sec. 19-2601; State v. Ensign, 38 Idaho 539, 223 P. 230; State v. Johnson, 75 Idaho 157, 269 P.2d 769.
If a defendant, given ample time to decide and having competent counsel to consult, chooses to plead guilty rather than to stand trial, that furnishes no ground for having the judgment rendered set aside on appeal. State v. Arnold, 39 Idaho 589, 604, 229 P. 748.
The length of the term of imprisonment was within the discretion of the trial court. In re Miller, 23 Idaho 403, 129 P. 1075.
November 23, 1955, defendant (appellant) was accused by information of the prosecuting attorney of the infamous crime against nature, alleged to have been committed in Ada County, State of Idaho, on the 1st day of January, 1955.
On November 29, 1955, the defendant appeared with his counsel. The information was read to defendant and a copy was given him. On defendant's motion further arraignment was continued to December 9th. On December 9th defendant and his counsel again appeared and upon request of defendant's counsel "the court continued further hearing herein until" December 16, 1955. December 14, 1955, the prosecuting attorney, with defendant and his counsel, appeared before the court "to plead to the information", and, upon arraignment by the court, the defendant pleaded guilty as charged. The prosecuting attorney made a statement for the information of the court, and counsel for defendant made a statement on his behalf. Nine witnesses were sworn and testified for the defendant. The court then continued "further proceedings" until December 23, 1955.
December 23, 1955, the prosecutor, with the defendant and his counsel, appeared. Defendant's counsel moved that the record be extended to include a medical report submitted in writing by Dr. Dale Cornell, and a telegram from one McKee of Eugene, Oregon, offering employment to the defendant. Defendant's counsel also moved that the court withhold judgment on the ground that the defendant had received further medical treatment since the last medical report was submitted, and that additional expert medical testimony from Dr. J.L. Butler would be available December 27, 1955, and should be received by the court. Defendant also made a motion for an order granting probation. The court granted the motion to extend the record, and denied the motions to withhold judgment and grant probation. These denials are assigned as error.
From the clerk's transcript and the notice of appeal, it appears these motions were made and denied after judgment of conviction and sentence was pronounced. The State urges that the court lacked jurisdiction to consider the motions at that stage of proceedings, citing State v. Ensign, 38 Idaho 539, 223 P. 230; State v. Johnson, 75 Idaho 157, 269 P.2d 769. However, the motions were made on the occasion of the rendition of judgment and, in making the motions, counsel for appellant requested the court to let the record show the motions were made after judgment of conviction, but prior to sentence. Under the circumstances we shall review the orders.
Appellant contends the pre-sentence investigation or hearing should have been further continued in order to permit the introduction of the testimony of Dr. Butler. We have held that the court on application for probation should hear the evidence offered, both in aggravation and in mitigation of the offense, and should consider such evidence in exercising its discretion invoked by the motion. State v. Mitchell, 77 Idaho 115, 289 P.2d 315.
While the trial court should exercise great liberality in receiving and considering all evidence offered, the conclusion is unavoidable that the court must also have and exercise a sound discretion as to the extent of the hearing to be had upon such application. Here the trial court in denying the motion to withhold sentence for the purpose of receiving the testimony of Dr. Butler, observed that the proposed testimony would be largely cumulative. We are unable to say the trial court abused its discretion in denying the motion.
The request for probation was predicated upon the testimony of witnesses as to the defendant's previous good character, reputation and standing in the community; his good family relationships; the testimony of Dr. Cornell, psychiatrist, that he had treated the defendant and considered him a good risk for probation, and that probation is important to continued therapy.
"In considering an application for probation the court must also consider, among other things, the showing made as to whether the defendant is a first offender, as to his previous character and actions, and as to whether it reasonably appears that defendant will abide by the terms of his probation and may be reasonably expected to be rehabilitated; and should also consider the interests of society." State v. Mitchell, 77 Idaho 115, at page 118, 289 P.2d 315, at page 316.
Rehabilitation is not the controlling consideration in the administration of criminal justice. The trial judge in this case listed the objectives of criminal punishment as follows:
"1. Protection of society;
"2. Deterrence of the individual and the public generally;
"3. The possibility of rehabilitation;
"4. Punishment or retribution for wrongdoing."
The primary consideration is, and presumptively always will be, the good order and protection of society. All other factors are, and must be, subservient to that end. Important as are the humanitarian considerations affecting the accused, his family and other relatives, and the importance to society of rehabilitation itself, such considerations cannot be allowed to control or defeat punishment, where other factors are ignored or subordinated to the detriment of society.
Opposed to the application for probation, the State made a showing of various forms of homosexual activity on the part of the accused, extending over a period of twelve or thirteen years, and involving teen-age boys as well as adults. This showing is supported by the report of appellant's psychiatrist, Dr. Cornell. In the face of such a record this court is precluded from holding that the trial court abused its discretion in denying probation.
The judgment and orders appealed from are affirmed.
KEETON, PORTER, ANDERSON, and SMITH, JJ., concur.