In Re Finley

Application for writ of habeas corpus.

The petitioner, while undergoing a life sentence in the state prison at Folsom, was indicted for the crime defined in section 246 of the Penal Code, and is now confined in the county jail of Sacramento County awaiting trial for said crime.

The section upon which the indictment is based reads as follows: “Every person undergoing a Ufe sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable with death.”

It is contended that the indictment is void and the restraint under it illegal, for the reason that section 246 contravenes sections 6, 11, and 13 of article I and subdivision 2 of section 25 of article IV of the constitution of the state, and the fifth, eighth, and fourteenth amendments to the constitution of the United States.

1. Bules of construction.

Questions involving the constitutionality of statutes always invite careful consideration of the relation between the legislative and judicial departments of government.

These departments are co-ordinate, and, being…