
    In re RUDGER CLAWSON.
    Criminal Law. — Commutation op Sentence:. — Petitioner was imprisoned upon a sentence rendered in the year 1884. He applied to be released upon habeas corpus on the ground of a statute approved March 11,1886, Laws of Utah, 1886, p. 6; held, that the right to discharge was controlled by statute in force at the time of sentence.
    
      Mr. Jabez G. Sutherland and Mr. James 0. Broad-head, for the petitioner.
    
      Mr. George S. Peters, for the respondent.
   Boreman, J.:

The petitioner is in prison on two charges — one being for polygamy, on which he was sentenced to three and a balf years in tbe'penitentiary; and tbe other for unlawful cohabitation, on which he was sentenced to six months in the penitentiary. Both sentences were rendered on the third day of November, 1884. He claims to be entitled to his discharge from imprisonment by reason of deductions from his terms of imprisonment on account of good conduct. This claim is based upon both territorial and United States statutes. The territorial statute is section 3 of “An act to lessen the terms of sentence of convicts for good conduct,” approved March 11, 1886, and found in the Utah Laws of 1886, p. 6. It is urged that this territorial statute is applicable by reason of the provisions in Rev. St. U. S., secs. 5543, 5544, and of 18 St. at Large, p. 479; the latter being a substitute for the above-named section 5543. These sections of the United States statutes provide that, where the territory has adopted any rules for lessening the terms of service for good conduct, such rules shall apply to United' States prisoners. That is established as the general rule, therefore,, applicable to United States prisoners. The territorial rule or statute which the petitioner asks to apply to his case was enacted, subsequently to the day of sentence. At the time of the sentence there were territorial statutory rules upon the subject; but the statutes then existing have been since repealed, and the present ones adopted.

As we look at the matter, the sentences were rendered in view of the rules then existing, and they thus, in effect, became a part of each sentence. Although such statutes have been repealed by the legislature of the territory, the acts of Congress referred to gave vitality to them, so far as sentences rendered during their existence were concerned. If we should allow the act of the legislature passed since the sentence to control, it in effect is to say that the legislature can, after judgment, nullify the judgment, and set the prisoner free. If the legislature can reduce the sentence at all, subsequent to the sentence, it can reduce it to an unlimited extent. This would be encroaching upon the authority of the executive, as it is the province of the executive, and not of the legislature, to reprieve or pardon. It would also be allowing the legislature to interfere witli the judicial branch of the government, and to usurp its duties, and to make a sentence and- judgment different from that entered in court. We are borne out in our view by the case of Ex parte Darling, 16 Nev., 98, and by the case of Com. v. Johnson, 42 Pa. St., 448.

The case of State v. Peters, 4 N. E. Rep., 81, was referred to as enunciating the contrary doctrine. The point was passed upon incidentally, but it was not necessary to a decision of the question in issue. That was not a case where the period of imprisonment was reduced by legislation subsequent to the sentence, but where, as a part of the ‘prison regulations, the legislature, subsequent to the sentence, authorized the parol of the prisoner within certain enlarged limits. He still, however, was a prisoner, and subject to all the prison rules. The term of his sentence was not lessened, and the case was not analogous to the one at bar.

We do not think the prisoner is entitled to his discharge at present, as his right to a discharge is controlled by the territorial statutes in force at the time the sentences were rendered. He is therefore remanded to the custody of the United States marshal.

ZaNE, O. J., and HekdersoN, J., concurred.  