I think the Legislature actually meant to confine what is now section 105-31-15, R.S. Utah 1933, to the crimes of *Page 131 murder and treason when the act was first passed. In 1911 the penalty for robbery could have been life (Laws 1911, c. 7). The indeterminate sentence did not come until 1919 (Laws 1919, c. 132). Consequently, the court from 1911 to 1919 could have actually given the definite determinate sentence of life in the case of robbery. During a certain period the same was true of rape. Certainly, these crimes must have come in under the wording of what is now section 105-31-15, R.S. 1933, because the court had the same discretion to give life as a definite determinate sentence in case of conviction of those crimes as it did in second degree murder where it could give a term of years or life. I doubt whether the legislature actually meant to do this, but it was the undoubted effect. I cannot see that the indeterminate sentence law took these crimes out of the category of charges wherein the defendant was entitled to ten peremptory challenges where the law had previously put them. True, it made life a limit on one end of the sentence and the period between the minimum and life was the period in which the indeterminateness might range, but, if the Board of Pardons did not sooner release the prisoner, he would be in for life in robbery and rape cases. Before 1919 the Board of Pardons could commute a judge-imposed sentence of life in the cases of rape, robbery, second degree murder, and any other crime in which the judge might impose life. After 1919, the same effect would be obtained by the nonaction rather than the action of the Board of Pardons. I cannot see that this distinction lifts these crimes out of the category in which they were put before 1919. I think the reasoning is against following the California cases.
I must therefore concur with Mr. Justice FOLLAND in this respect and also in his views that the defendant cannot claim prejudicial error. In the remaining aspects of the case, I concur with Mr. Justice EPHRAIM HANSON. *Page 132