The respondent was convicted in the recorder’s court of Detroit, October' 18, 1889, on the charge of uttering a forged deed'. The case was brought to this Court, and affirmed at our last January term.
On February 1, 1890, respondent was brought before-Judge Gartner, and sentenced to imprisonment at Jackson under the provisions of Act No. 228, Laws of 1889, entitled-
“ An act to provide for indeterminate sentences, and disposition, management, and release of criminals under such sentence.”
The attention of the court being afterwards called to-the fact that the act of 1889 only took effect on October 3, 1889, while thе crime with which respondent was charged is alleged and sworn to have been committed on September 20, 1888, the court was of thе opinion that the sentence attempted to be imposed on respondent on February 1 was void as having been imposed under a law which was not in force at the time of the commission of the offense of which respondent was convicted. On Februаry 5 the same judge caused the respondent to be brought before him, and imposed another sentence, the formal recоrd of which is as follows:
“At a session of the recorder’s court of the city of Detroit held in and for said city at the court-room of sаid court on Wednesday, the fifth day of February, in the year of our Lord eighteen hundred and ninety.
“ Present, at the request of the recordеr of the city of Detroit and associate judge thereof, Honorable George Gartner, one of the judges of the circuit court of the county of Wayne, and acting-judge of the recorder’s court of the city of Detroit.
“ The People oe the State oe Michigan v.
“William J. Dane.
“ Information for Dttering and Publishing a Forgеd Instrument.
“The defendant, on the first instant, having been sentenced by this court to he committed to the State prison of this State at*39 Jackson, in the county of Jackson, and therein confined at hard labor for the term of fourteen years, from and including this date, unless sooner discharged by due course of law, and in pursuance of the provisions of Act No. 228 of the Public Acts of 1889, entitled 1 An act to provide for an indeterminate sentences, and disposition, management, and release of criminals under such sentence.’
“And it afterwаrds appearing to the court, and before the execution of said alleged judgment, or any part thereof, that the crime of which the respondent stands convicted was committed prior to the passage of said law, and that the same is void, it is-ordеred that said alleged judgment be, and the same is hereby, vacated, set aside, and held for naught.
“And the defendant, being brought in open сourt, and having been asked by the court if he had anything to say why sentence should not be pronounced upon him, having nothing to say, except to formally protest against further proceedings, is sentenced by the court, he being now of the age of twenty-seven, to be committed to the State prison of this State, at Jackson, in the county of Jackson, and therein confined at hard labor, fоr the term of ten (10) years from and including February 1, A. D. 1890.”
The imposition of this sentence is now alleged to be error, on the ground that the originаl sentence had gone into effect, and five days of the imprisonment under the sentence had passed; that the court had no power at that time to vacate the sentence, because the authority over respondent had passed out оf his hands; that any sentence takes effect from the day it is pronounced, and a subsequent sentence, fixing a different term, is a nullity; and we are cited to two late cases in this Court in support of this view: People v. Meservey,
It is urged upon us that that act, so far as it relates to this case, was not an ex post facto law, for the reason that a law which changes the punishment by mitigating it is not obnoxious to the provision of the Constitution which forbids the passage of ex post facto laws. But we cannot say upon this record that the punishment under the act in question mitigates the punishment. It would need to be a very clear case before we could hold that the rule referred to would apply. If the first sentence was a nullity as having been imposed under a law not in force at thе time of the commission of the ofíense with which the respondent was charged, then it may be treated as never having been imposed; and, nothing having been done by way of carrying such sentence into execution, we think the court had the same authority to impose the sentence which was imposed on February 5 that it would have had if the sentence of February 1 had never been attemрted.
We are asked by respondent to pass upon the constitutionality of the indeterminate sentence act of 1889, but, as we do not consider it necessary upon this record, we decline to do so.
The judgment must be affirmed.