61 Mich. 105 | Mich. | 1886
The prisoner was convicted in 1877 of an assault with intent to murder, and sentenced to imprisonment for twelve years in the State prison. At the same term of court he was sentenced for larceny to a term of three years, “ from and after the expiration of the term of twelve years’ sentence this day imposed.” This latter sentence is said to have been imposed by the judge who tried him on the smaller charge, of which he was convicted some time before the greater conviction. This might have presented some difficulty if we were not satisfied that the second sentence was illegal on other grounds. By good conduct the prisoner has saved three years of his twelve-years sentence, and is entitled to his discharge from that. The question raised by the prison authorities is whether they can continue to hold him on the second sentence.
The only case which has presented any analogous question in this Court is Harris Bloom's Petition, 53 Mich. 597, where the prisoner had been committed to the Detroit .house of correction for two terms, of three months each, for the felony of larceny. The form of the second sentence made it run for three months from April 24, 1884, unless the first sentence should sooner expire or he should be otherwise entitled to release, in which case it was to run for three months from that time. It was held, without discussing any other point, that the second sentence was too uncertain and indefinite as to the time of its commencement, andr in the absence of statute, could not be upheld.
But, as the subject is one which may call for legislative action for the future, we think it proper to refer to some considerations underlying such action.
Upon the hearing it appeared, as it did in Bloom's Case, that there is a conflict of authority, which seems to come more from local usage and legislation than from the common law. The relations of this commonwealth to the common law are not altogether conformed to the holdings of some other states. In many of the states, statutes of parliament passed before or during the early days of the American colonies, as well as old colonial statutes and u'sages, have been recognized as part of the local common law, and have been construed and applied by the courts. But Michigan was never a common-law colony, and while we have recognized the common law as adopted into our jurisprudence, it is the English common law, unaffected by statute.
In 1810 an act was passed putting an end to all the written law of England, France, Canada, and the Northwest and Indiana territories, as well as the French and Canadian customs, leaving no statute or code law in force except that of Michigan territory and the United States: 1 Terr. Laws, 000. And while we have kept in our statute-books a general statute resorting to the common law for all non-enumerated crimes, there has always been a purpose in our legislation to have the whole ground of criminal law defined, as far as possible, by statute. There is no crime whatever punishable by our laws except by virtue of a statutory provision. The punishment of all undefined offenses is fixed within named limits, and beyond the unregulated discretion of the courts. "While we refer with profit to the rulings of other courts, there are many cases where we cannot regard them as binding.
There is, however, no authority to be found, so far as our examinations have gone, and so far as the criminal law citations are found in the best elementary books, which holds that such a practice exists at common law in felonies. In Reg. v. Cutbush, L. R. 2 Q. B. 379, it is said distinctly that a statute was necessary to apply to felonies the practice in misdemeanors. That case points out how the British statutes have provided for it. That is a recent, and, beyond question, a correct, statement of the law.
Whatever elasticity there may be in civil matters, it is a safe and necessary rule that criminal law should not be tampered with except by legislation. Under our constitution this must be done by statutes clearly pointing out in their titles and provisions the precise purpose designed. We have in this State not only county jails, but several public prisons designed to hold' different classes of prisoners. In the State prison there can be no imprisonment except for
In our opinion, the prisoner should be discharged