Section 246 of the Penal Code of the state of California provides as follows: 'Every person undergoing a life 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.' Plaintiff in error was indicted under this section, tried, found guilty, and the death penalty imposed. To the judgment of the supreme court of the state, affirming the sentence against him, he prosecutes this writ of error, and urges as ground thereof that § 246 is repugnant to the 14th Amendment of the Constitution of the United States in that it denies to him the equal protection of the laws, because it provides an exceptional punishment for life prisoners.

The supreme court sustained the law on the ground that there was a proper basis for classification between convicts serving life sentences in the state prison, as defendant was when he committed the crime for which he was indicted and found guilty, and convicts serving lesser terms.

It is elementary that the contention is to be tested by considering whether there is a basis for the classification made by the statute. Applying that test, we see no error in the ruling. As said by Mr. Justice Henshaw, delivering the opinion of the court, 'The classification of the statute in question is not arbitrary, but is based upon valid reasons and distinctions.' And pointing out the distinction between life prisoners and other convicts, he said that 'the 'life termers,' as has been said, while within the prison walls, constitute a class by themselves,—a class recognized as such by penologists the world over. Their situation is legally different. Their civic death is perpetual.' [153 Cal. 62, 94 Pac. 248.] Manifestly there could be no extension of the term of imprisonment as a punishment for crimes they might commit, and whatever other punishment should be imposed was for the legislature to determine. The power of classification which the lawmaking power possesses has been illustrated by many cases which need not be cited. They demonstrate that the legislature of California did not transcend its power in the enactment of § 246.

Judgment affirmed.