139 Mich. 712 | Mich. | 1905
This proceeding is by habeas corpus to determine the question of the validity of a sentence. Petitioner was convicted of the offense of lewd and lascivious cohabitation, and on March 1, 1905, was sentenced to be confined at the Michigan State prison at Jackson, at hard labor, for not less than six months. On the same day, by virtue of a warrant issued from the court in pursuance of this sentence, the petitioner was committed to the State prison at Jackson, where he is now confined. The contention of petitioner is that this sentence is unauthorized and void, and that therefore he should be released and discharged from custody.
“If any man and woman, not being married to each other, shall lewdly and lasciviously associate and cohabit together, * * * every such person shall be punished by imprisonment in the county jail not more than, one year, or by fine not exceeding five hundred dollars.” 3 Comp. Laws, § 11693.
The statute which provides in what cases persons may be sentenced to State prisons for afi offense is as follows:
“Courts of criminal jurisdiction may sentence to the State house of correction and reformatory at Ionia all male persons over fifteen years of age and not known to have been previously sentenced to a prison for felony, who shall be convicted of any crime except treason or murder in the first degree; and all male persons over fifteen years of age who shall be convicted of any misdemeanor, where the sentence for such crime or misdemeanor shall not be less than six months; and may sentence to the State prison at Jackson any person over the age of fifteen years, duly convicted of any crime punishable by imprisonment in said State prison as the courts shall deem best; and may sentence to the State house of correction and branch of the State prison in the Upper Peninsula all persons convicted as is or may be provided by law for sentencing prisoners to any of the other prisons in this State as the court shall in its discretion deem best.” 1 Comp. Laws, § 2108.
The provision therein relating to the State prison at Jackson — “and may sentence to the State prison at Jackson any person over the age of fifteen years duly convicted of any crime punishable by imprisonment in said State prison as the courts shall deem best ” — does not authorize the sentence in this case, and there, is no other authority therefor. This statute empowers the court to sentence to the branch of the State prison at Marquette a person convicted of such an offense as the one now before this court. People v. Smith, 107 Mich. 584. By this case it was decided that the provision in section 29, Act No. 118 of the Public Acts of 1893 ( section 2108, above quoted), relating
The sentence being wholly void, habeas corpus is an appropriate remedy. Hamilton's Case, 51 Mich. 174; In re Silverthorn, 73 Mich. 644.
The petitioner is discharged.