*1 Appellant. Commonwealth v. Glover, Argued November 1959. Before J.,C. Jones, Bok and Bell, Musmanno, Jones, McBride, Cohen, JJ.
Herman I. with him Bernard Defender, Pollock, appellant. for Assistant Defender, Edelson, Attorney, Domenick District with Assistant Vitullo, District him Paul M. First Assistant Attor- Ghalfin, appel- Attorney, ney, Victor H. for District Blanc, lee.
Opinion November Mr. Justice McBride, 1959: appeal of the
This is an from decision affirming judgment of sentence of July Philadelphia County. Quarter Sessions of On appellant giving was tried and convicted 17, 1958, drugs away L. of the Act of violation though §865. an 35 P.S. Even this itself is 1013, §1, there he to receive was evidence that was offense, transfer. future some consideration for the He was Penitentiary thereafter to the sentenced Eastern State a term of than than not less nor more relating The to on evidence the transaction appellant nar- sentenced that he which was was shared personal keeping cotics he for his use was own with saying sick, user when that he fellow was latter, pleaded appellant drugs. for some At the time the trial said that he believed sen- “quite imposing tence to be excessive” and was §12 because he believed under was July Act of P. L. as last amended July §865. P. L. 1013, §1, pertinent provides: person part, “Any inAct, dispenses gives away any drugs who or in viola- sells, provisions guilty tion of the of this act shall upon felony, conviction sentenced and, shall be thereof, pay for a follows: first to a fine not exceed- offense, ing ($5000) undergo five thousand dollars to im- prisonment separate solitary confinement labor or at (5) years of not than less (10) years; . . question province
There
no
that it is
within
legislature
pronounce
to
in addition
what acts,
recognized
to those
at
common
are crimes and
law
punishment
statutory
fix the
all
crimes whether
Lycett
common law.
ex
rel.
v. Ashe,
legislature
Ct.
A. 2d 881. The
*3
right
penalty
has the
to fix the maximum
and likewise
if it sees
name the
it
can,
minimum.
If it does so
fit,
thereby
does not
violate Article
1
the
Section
of
V,
judicial
vesting
powers in
courts.
Constitution,
the
Sweeney,
Commonwealth v.
281
226;
Pa.
127 A.
550,
Commonwealth v.
The
It is contention that the act when imprisonment by “undergo that the defendant shall separate solitary confinement at labor of less not (5) years (10) years” than five not ten that means his maximum sentence shall be not less yeai*s years.1 than five nor more than other ten On the the hand Commonwealth contends that interpreted correctly Court and the trial court both provision imposing this of a as manda- 1 agrees, course, He of in that that event the minimum sen conformity tence would be not more than half in maximum provisions 975, of the Act of June P. h. amended, §1057. 19 P.S. 546 minimum sentence of five
tory years therefore, maximum sentence In years. effect, that im- contends sentence which can be to ten It be is must posed that such an rea- conceded be a sonable one. course, interpretive approach our
However,
must,
on the
that
this is a
statute
penal
be based
premise
must
construed.
See Act of June
as such
be strictly
May
L.
Act of
§5104;
P.
24,
872,
§1104,
L.
Article
P.S.
Com
46
IV, §58,
§558;
28,1937,
ex rel. Varronne
Pa.
monwealth
v.
365
Cunningham,
Pa.
547 supra) and in no event of June as amended, further more than This is five phrase “and not out the borne use interpret (10) years”. to this act so ten If we were impose sentence that the trial must a minimum years years, of a maximum sentence ten five exceeding” “not effect the what be words applied years term? The word the maximum to “maximum” the “sentence” unmodified words when necessarily only to the maximum or refers “minimum” legal The minimum for is the sentence. sentence merely the court an administrative notice sentence parole might, question parole to the that the board properly expiration, considered. Common at its Lycett supra; rel. ex wealth v. Kalck, supra. v. Ashe, provide legislature for the has desired
When past un done so in it has minimum in the equivocal Act language. Barr-Walker Act, In the (1951) P.S. January 19 §1166, P. L. of sex certain given to sentence court was indeterminate an “to a state institution fenders day maximum of having one a minimum of term “maxi “minimum” and natural life.” The words his pro missing noticeably from the are mum” supra. court’s Drug The trial ofAct vision Superior upon opinion the belief based was that a minimum had decided years manda of ten a maximum sentence Pa. tory Bozzi, in the case Commonwealth in the Bomi A. 2d 290. However, . Ct provisions of penalty question of whether case, imposition required indiscriminately year having year minimum and a of a sentence upon Supe passed by the not raised maximum was in Bomi did not Indeed, rior Court. or maxi- the term of the minimum to decide what have *5 the trial must be because mum sentence may I con- the Act read very carefully, there said: “Having be some there may that while it is possible clude Judge to restrict discretionary attempt not affected in case it has this particular in sentencing, I to have because in the were slightest, discretion my be the same.” choice sentence full my holding, present our contrary Anything in footnote stated which was Supe- to its opinion Todd, 142 A. overruled. 2d rior Ct. 272, hereby is reversed and judgment Quarter Sessions is remanded to Court of the case Philadelphia resentencing. County Dissenting Opinion Me. Justice Bell: and a unanimous Judge Supe with agree I Flood interpretation their rior Court Act I the Act is believe and that a 1957* reasonable thereof means a minimum of five and maximum sentence of ten There is nor no the use magic in, necessity for, “maximum and I cannot words un minimum”; how the can be ma interpreted derstand construes it. jority * agree Judge punishment pre- I likewise Flood the Act harsh.
scribed too Appellant,
Donaldson, v. Maffucci.