In re Butler

• Citation: 101 N.W. 630,138 Mich. 453
• Court: Michigan Supreme Court
• Decision Date: 14 December 1904
• Parties: In re BUTLER.

101 N.W. 630

138 Mich. 453

In re BUTLER.

Supreme Court of Michigan

December 14, 1904

Habeas corpus on relation of James Butler to procure his release from prison. Denied.

Thomas, Cummins & Nichols, for petitioner.

Charles A. Blair, Atty. Gen. (George S. Law, of counsel), for respondent, warden of State Prison at Jackson.

HOOKER J.

On October 19, 1897, the petitioner was sentenced to confinement in the State Prison for twenty years upon a conviction of the offense of larceny from a dwelling in the daytime, the penalty for which is such confinement for a period not exceeding five years. It was alleged in the information and proved upon the trial that he had been twice before convicted and sentenced to terms of one year or more, and the brief for the petitioner states that 'it is supposed that this penalty was imposed by reason of the provisions of sections 11,785 and 11,786 of the Compiled Laws of 1897.' These sections are as follows:

'(11,785) Sec. 12. When any person shall be convicted of any offense and shall be duly sentenced therefor to confinement in the State Prison of this state, for one year or more, and it shall be alleged in the indictment on which such conviction is had, and admitted or proved on the trial, that the convict has before been sentenced to a like punishment by any court in this state, or in any other of the United States, for a period not less than one year, he shall be sentenced to be punished by imprisonment in the State Prison not more than seven years, in addition to the punishment prescribed by law for the offense of which he shall then be convicted.

'(11,786) Sec. 13. When any such convict shall have been twice before sentenced to imprisonment at hard labor, for a period of not less than one year at each time, by any court in this state, or in any other of the United States, he shall be sentenced to imprisonment at hard labor for life, or for a term of not less than seven years in addition to the punishment prescribed by law for the offense of which he shall then be convicted.'

Two points are relied upon as grounds for the petitioner's discharge: (1) That sections 11,785 and 11,786 were repealed by Comp. Laws 1897, � 2112; (2) that under section 11,785 it was necessary to the validity of an increased sentence that the record show that at least one year of the term was not included in the additional penalty imposed under section 11,786.

Section 2112 is a statute pertaining to an allowance of good time for good behavior in prison. It is in no sense an imposition of additional penalty upon confirmed criminality, to be imposed by the court, but is a reduction of such penalty, to be allowed by the prison board, upon the basis of the prisoner's conduct subsequent to sentence. In re Canfield, 98 Mich. 644, 57 N.W. 807.

The second point is a technical one. It is first argued that under neither of these sections (11,785 and 11,786) can one...