The state appeals to challenge the propriety of sentencing the defendants to life imprisonment instead of death upon their conviction of first degree murder. Defendants move to dismiss on the ground that no such appeal by the state is authorized by law.
Defendants argue that the only appeal permitted the state in criminal cases is as stated in Sec. 77-39-4, U.C.A. 1953:
If we accept defendants' premise: that the only authorization for an appeal by the state must derive from the above-quoted statute, the right of appeal must be found in subsection (3).
The question then arises: whether the sentence is "an order made after judgment," as distinguished from the judgment itself. It is true that the jury verdict and the judgment entered thereon, whether of guilty or not guilty, is sometimes spoken of as "the judgment" in a criminal case. If that constituted the whole judgment, then the sentence might be regarded as "an order made after judgment." But it is also true that until the court acts upon the verdict and pronounces sentence upon the defendant there is no burden imposed about which to complain and take an appeal. Accordingly,
Section 77-35-1 provides:
Further in accord with the idea that the sentence is not "an order made after judgment" is the statement in our case of State v. Fedder:
We are not aware of, nor have we been shown, any adjudication to the effect that a sentence is such "an order made after judgment;" and it does not seem reasonable to suppose that the appeal allowed in the above-quoted statute was intended to be to the sentence imposed, or it could have plainly so stated.
The state makes the alternative argument: that if the quoted statute does not authorize the appeal, it should be allowed upon the ground set forth in the dissent in the case of State v. Davenport,
As a general proposition the law as established should remain so until changed by the legislature, whose prerogative it is to make and to change the law. This does not mean to say that where there is judge-made law, which is later observed to be clearly in error, that such error should be so cast in cement that it cannot be remedied. In such circumstances the court undoubtedly can and should correct it.
But more important than any of the above is the oft proclaimed salutary principle: that ours is a government of laws and not of men. Accordingly, the law should not be changed simply because of the will or desire of judges as to what the law is or ought to be. Much less so, should it be so changed during the course of a particular proceeding to have a retroactive effect thereon. Notwithstanding the fact that the change the state advocates would vindicate the position taken in the dissent referred to, to so rule in this case retroactively would violate what we regard as a higher principle: that of honoring the established law. If there is to be such a change in the law, whether by legislative act or by judicial decision, it seems that it should have only prospective effect and that fairness and good conscience require that it should not be applied retroactively to adversely affect rights as they existed at the time a particular controversy arose.
There is a further proposition which we think has a legitimate bearing upon our action on this motion: due to the multifaced opinion of the United States Supreme Court in the case of Furman v. Georgia,
It should be noted that this discussion deals solely with the motion to dismiss the state's appeal; and that it does not reach nor have any relationship whatsoever to the lawfulness of the defendants' conviction, which has been heretofore dealt with,
On the basis of the record presented on this motion and what has been said herein, we have concluded to grant the motion to dismiss the appeal.
MAUGHAN, WILKINS and HALL, JJ., concur.
ELLETT, Chief Justice, (dissenting).
The opinions of the author in the main opinion regarding appeals by the state, unlike swiss cheese, do not improve with age. His dissent in the case of State v. Davenport
There should be a better reason for following an erroneous holding than the idea that once we make an error, it must be perpetuated until the legislature spends its time to correct our mistakes. We should correct our own errors as soon as the occasion arises when we are convinced that an error has been made. I would allow the appeal to stand.
Even if the appeal were not permitted by the constitution,
His failure to act in accordance with the law stems from the fact that the sentence to be imposed upon those guilty of murder
The defendants had been sentenced to be shot, but the execution date was postponed by the United States Supreme Court. The case was remanded by that Court to the Utah Supreme Court to consider the case in the light of Stewart v. Massachusetts.
Since Utah has never had a racial problem (only one black man has been executed in Utah since statehood in 1896), it cannot be said that we are governed by the Stewart or the Furman cases. Therefore, the only lawful penalty to be made is that of death. The trial court should have fixed a new date for the execution if it proceeded according to law as it was directed to do. However, the court did not proceed according to law; it imposed a sentence which cannot be found in the statutes, to wit: life imprisonment.
To follow the main opinion in this case is to let two cold-blooded murderers avoid the lawful sentence that they were originally given. If the state is not permitted to appeal the erroneous sentence imposed, the matter ends here until the defendants seek relief by way of habeas corpus on the ground that there is no penalty under the law for retaining them in prison. It would be better to allow the appeal and have a decision on the matter in the light of the Stewart case as the Supreme Court of the United States requested, than to merely remand for the court to follow the law.
It appears to me that this Court is supinely shirking its responsibility if we let the sentence stand as made. It is no excuse to refuse to stand firm on the principles of this case by saying that the prosecuting attorney can bring more cases of first degree murder against the defendants. We should do our duty, and if any court is to say that the penalty provided by law in this case is invalid and that these killers are to be freed, let it be some court other than our own.