State v. Fackler

91 Wis. 418 | Wis. | 1895

WiNslow, J.

Sec. 4449, R. S., makes the wilful conversion of floating or stranded logs larceny, and provides a minimum punishment for the first offense. Is it void because it does not fix a maximum penalty or limit to the punishment ? We think not. Conceding that the act on its face purports to authorize an unlimited fine and a life imprisonment, and that such punishment would be in violation of sec. 6 of art. I of the constitution, prohibiting excessive fines and cruel and unusual punishments, still it must be held that the balance of the statute, which creates the offense and fixes the minimum punishment, is perfectly valid, and that sentence may be pronounced under it. The void parts and the valid parts are independent. They do not depend on each other, nor is one the condition, consideration, or compensation for the other, so as to justify the belief that the legislature intended that if all could not be carried into effect none should be. State v. Williams, 77 Mo. 310; Warren v. Charlestown, 2 Gray, 84. The contention that the statute is too vague and indefinite to be enforced is met by similar considerations. The minimum punishment is prescribed, and it is fixed and certain, and may unquestionably be inflicted, whatever the conclusion as to the power to inflict any greater punishment. So we hold the law entirely valid as a basis for the infliction of the minimum punishment, and hence such a punishment can, upon a valid conviction, be imposed under it.

These conclusions completely answer the second and third questions submitted by the circuit judge, and in strictness it is not necessary to go'f urther and decide whether any greater sentence than the minimum named in the statute may be imposed. However, w'e feel justified in expressing very serious doubt upon that question. It seems probable, from the history of the legislation of which 'Sec. 4449 is the result, that it was expected that the maximum penalties for larceny under sec. 4415, K. S., would constitute the maximum penalties for offenses of this nature, and that for this purpose the two sections were to be read and construed together. The difficulties of any such construction will be apparent to any one making the attempt. Nor can it be held that the provisions of sec. 4685, E. S., apply to the offense 'in question, because a punishment is prescribed by sec. 4449. In view of the manifést uncertainty and doubt surrounding the question., we feel justified in assuming that the trial courts, when called on to administer this statute, will not attempt to inflict any greater sentence than the one named in it.

The question whether the defendant can be lawfully sentenced under a verdict which does not find a felonious intent must be answered in the affirmative. The verdict found that the conversion was wilful, and this is the only intent which the statute requires. This is not a prosecution for a common-law felony, for no such act as that prohibited by this statute was larcgny at common law. Nor is it a prosecution for a statutory felony, because the statute neither expressly nor by implication denominates it a felony. The word “ feloniously ” is therefore not necessary in the information, and consequently it is not necessary in the ver- • diet.

The first and second questions submitted are answered in the affirmative, and the third question in the negative.

By the Court.— It is so ordered.