Ex parte Evans
| Citation | 173 Mich. 25,138 N.W. 276 |
| Parties | Ex parte EVANS. |
| Decision Date | 08 November 1912 |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE
Habeas corpus for Charles Evans for his discharge from Jackson Prison. Denied, and prisoner remanded.
Argued before MOORE, C. J., and STEERE, McALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ. Burney E. Brower and Rueben H. Rossman, both of Jackson, for petitioner.
Thos. A. Lawler, Deputy Atty. Gen., for the People.
The petitioner, Charles Evans, raises the question as to whether he is legally detained in Jackson Prison by a petition for a writ of habeas corpus.
The petitioner was convicted of the crime of burglary in the Berrien circuit court, and on the 1st day of May, 1907, received the following sentence: ‘The said Charles Evans to be confined in the state prison at Jackson, at hard labor, for the maximum period of five years and for the minimum period of two years, and the court recommends three years as a reasonable maximum sentence.’ The maximum period fixed by the trial court having expired, the petitioner contends that he is now entitled to be discharged. The warden refuses to release him, and bases his refusal upon the fact that the statute (section 11,546, C. L. 1897) under which petitioner was sentenced provides a maximum penalty of 15 years, and that the statute should control, rather than the 5-year period fixed by the trial court.
It is argued by the Attorney General, in defense of the warden's position, that the fixing of a 5-year maximum period by the trial court was without warrant of law, for the reason that the indeterminate sentence law confers no authority on the trial court to fix any other or different maximum period than the one fixed by the statute under which the sentence was pronounced. The indeterminate sentence law provides: ‘The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence.’ Act No. 184 of the Laws of 1905. It will be observed from a reading of this provision that the Legislature conferred no authority on the trial court to fix the maximum period. The Legislature itself pointed out what the maximum period should be, and directed the trial court to ‘state it in passing sentence.’ The duty imposed on the trial court was not one in which he had any discretion, but was simply a plain ministerial duty. This being so, it would follow that the maximum period of 5 years fixed by the trial court is a nullity,...
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...by ... statute.” Callahan, 348 Mich. at 80, 81 N.W.2d 669, citing Ex parte Duff, 141 Mich. 623, 105 N.W. 138 (1905); Ex parte Evans, 173 Mich. 25, 138 N.W. 276 (1912). 5. See, e.g., MCL 750.49(5) (providing that courts may require individuals convicted of offenses related to fighting, baiti......
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... ... ascertainment of guilt and the punishment for those found ... guilty of criminal offenses ... In Ex ... parte Fisher, 95 W.Va. 397, 121 S.E. 287, 288, this Court ... discussed the duty of trial courts in such matters, referring ... to a sentence as "a ... 270, 128 P. 1111; Ex Parte Duff, 141 Mich. 623, 105 ... N.W. 138; Cave v. Haynes, Warden, etc., 221 Iowa ... 1207, 268 N.W. 39; Ex Parte Evans 173 Mich. 25, 138 ... N.W. 276. The unauthorized fixing of a maximum term is ... without force or effect, and confers no rights upon the ... ...
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Territory Hawai`i v. Armstrong
...148 Ill. 413; Miller v. State, supra; Ex parte Melosevich (Nev.), 133 Pac. 57; Adams v. Barr (Iowa), 134 N. W. 564; Ex parte Evans (Mich.), 138 N. W. 276). The sentence is erroneous in that it does not fix the minimum term of imprisonment of the defendant, a right which the defendant has un......
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...fn. 4 Supra, 6 Mich.App. p. 301, 148 N.W.2d 898.12 Cf. In re Duff (1905), 141 Mich. 623, 624, 105 N.W. 138; In re Evans (1912), 173 Mich. 25, 27, 138 N.W. 276; In re O'Dell (1962), 365 Mich. 429, 113 N.W.2d 220; People v. Mellor (1942), 302 Mich. 537, 542, 5 N.W.2d 455.13 Here the grand jur......