{
  "id": 5320491,
  "name": "Willard Joseph STARKEY, Petitioner-Appellee, v. Harold A. COX, Superintendent of the New Mexico State Penitentary, Respondent-Appellant",
  "name_abbreviation": "Starkey v. Cox",
  "decision_date": "1964-02-03",
  "docket_number": "No. 7346",
  "first_page": "434",
  "last_page": "436",
  "citations": [
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      "cite": "73 N.M. 434"
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      "cite": "389 P.2d 203"
    }
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  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
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    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
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      "cite": "71 N.M. 274",
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  "last_updated": "2023-07-14T20:56:36.975569+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "COMPTON, C. J., and CHAVEZ, J., concur."
    ],
    "parties": [
      "Willard Joseph STARKEY, Petitioner-Appellee, v. Harold A. COX, Superintendent of the New Mexico State Penitentary, Respondent-Appellant."
    ],
    "opinions": [
      {
        "text": "MOISE, Justice.\nThis is an appeal from an order granting petitioner-appellee habeas corpus and ordering his release and discharge from custody.\nThe record discloses that on September 25, 1959, appellee was sentenced to serve concurrent sentences of \u201cnot less than one year\u201d in the state penitentiary on each of two counts of sodomy. On May 11, 1962, being still incarcerated, appellee filed his petition for a writ of habeas corpus alleging that his imprisonment was illegal. Appellant made return thereto, and after hearing the trial court ordered appellee\u2019s discharge.\nThe order granting the writ discloses that the trial court was of the opinion that \u00a7 41-17-2, N.M.S.A.1953, had not been repealed by implication, and that this section of the law should be applied to \u00a7 40-7-7, N.M.S.A.1953, under which appellee was sentenced, and that when so applied \u00a7 40-7-7 should be construed to prescribe a maximum penalty of imprisonment of not more than one year. Based upon this construction the release of appellee was ordered. This appeal was duly perfected.\nAppellant argues that the court erred in interpreting \u00a7 40-7-7, N.M.S.A.1953, as providing a maximum penalty of one year, and that under the court\u2019s decisions the maximum is life imprisonment.\n\u00a7 40-7-7, N.M.S.A.1953, provides for imprisonment \u201cfor not less than one (1) year\u201d of a person convicted of the crime of sodomy, or for a fine, or for both fine and imprisonment, in the discretion of the court.\nIn McCutcheon v. Cox, 71 N.M. 274, 377 P.2d 683, decided since the instant case arose, we held that under \u00a7 42-1-61, N.M.S.A.1953, providing a penalty of \u201cnot less than two (2) years\u201d imprisonment upon being convicted of escaping or attempting escape from the state penitentiary, a maximum penalty of life imprisonment was intended.\nThere is no way to distinguish this case and McCutcheon v. Cox, supra. Appellee seems to recognize that this is true, but would argue for a different holding here because it is claimed that the authorities relied on in McCutcheon v. Cox, supra, do not support the conclusion reached in that case. We have reviewed these authorities, and the arguments made by appellee concerning them, but remain satisfied with the reasoning and conclusion there reached.\nAlthough as already noted the trial court based its conclusion on an interpretation of \u00a7 40-7-7, N.M.S.A.1953, in the light of its interpretation of \u00a7 41-17-2, N.M.S.A. 1953, appellee makes no effort to support the judgment on this basis. \u00a7 41-17-2 reads:\n\u201cIn all penal statutes of the state where by the terms of such statutes a definite punishment of imprisonment in the penitentiary is prescribed the time of such imprisonment in such statute shall be construed to be the maximum of imprisonment, unless such statutes expressly provide that such time is the minimum.\u201d\nWe fail to see the applicability of this section. \u00a7 40-7-7, N.M.S.A.1953, quoted above, specifically provides that the period of time shall be \"not less than one (1) year.\" To our minds, this is an express provision of a minimum, and is the situation where under \u00a7 41-17-2, N.M.S.A. 1953, the time of imprisonment is expressly not to be construed as a maximum. \u00a7 41-17-2, N.M.S.A. 1953, would require the one year sentence to be construed to be a maximum sentence if the statute fixing the term of imprisonment provided that one convicted of the offense should be sentenced for a term of one year without stating whether it is \u201cnot less than\u201d or \u201cnot more than\u201d that period. Such is not our case, and the statute has no application. Compare Jones v. Cox, N.M., 389 P.2d 214.\nThe judgment appealed from is erroneous. It is reversed and the cause remanded to the trial court with instructions to proceed in a manner consistent herewith. It is so ordered.\nCOMPTON, C. J., and CHAVEZ, J., concur.",
        "type": "majority",
        "author": "MOISE, Justice."
      }
    ],
    "attorneys": [
      "Earl E. Hartley, Atty. Gen., Joel M. Carson, J. E. Gallegos, Asst. Attys. Gen., Santa Fe, for appellant.",
      "M. W. Hamilton, Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "389 P.2d 203\nWillard Joseph STARKEY, Petitioner-Appellee, v. Harold A. COX, Superintendent of the New Mexico State Penitentary, Respondent-Appellant.\nNo. 7346.\nSupreme Court of New Mexico.\nFeb. 3, 1964.\nEarl E. Hartley, Atty. Gen., Joel M. Carson, J. E. Gallegos, Asst. Attys. Gen., Santa Fe, for appellant.\nM. W. Hamilton, Santa Fe, for appellee."
  },
  "file_name": "0434-01",
  "first_page_order": 466,
  "last_page_order": 468
}