In re Southard

• Decision Date: 02 June 1941
• Docket Number: Motion No. 319.
• Citation: 298 Mich. 75,298 N.W. 457
• Parties: In re SOUTHARD.
• Court: Michigan Supreme Court

298 Mich. 75

298 N.W. 457

In re SOUTHARD.

Motion No. 319.

Supreme Court of Michigan.

June 2, 1941.

Petition by Harry N. Southard for a writ of habeas corpus to the Branch Prison at Jackson.

Writ denied.

Argued before the Entire Bench.

Thomas Marshall, of Corpus Christi, Tex., and Campbell & Layher, of Jackson, for petitioner.

BUSHNELL, Justice.

Petitioner, Harry N. Southard, was convicted by a jury on November 1, 1933, of the crime of ‘robbery-armed, third felony.’ The offense of robbery-armed is punishable by imprisonment for life or any term of years. Section 529 of the Penal Code, Act No. 328, Pub.Acts 1931 (Stat.Ann. § 28.797). Southard was sentenced to serve a minimum term of 15 years and a maximum term of 25 years. Petitioner thereafter filed motions to vacate the sentence, to reduce the sentence, and various interlocutory motions, all of which were denied.

In this petition for a writ of habeas corpus, Southard alleges that ‘he is not committed or detained by virtue of any process, judgment, decree or execution specified in’ 3 Comp.Laws 1929, § 15207 (Stat.Ann. § 27.2251). He then asserts that ‘such confinement is by virtue of a warrant of commitment issued out of the Circuit Court for the County of St. Clair, State of Michigan.’ Petitioner explains this inconsistency by the claim that the statutes under which he was sentenced, namely, ‘sections 8, 9, 10, 11 and 12 of Chapter IX’ of the Code of Criminal Procedure, same being 3 Comp.Laws 1929, §§ 17336-17340 (Stat.Ann. §§ 28.1080-28.1084), are unconstitutional in that there is unlawfully delegated to members of the judicial department of the State government power to fix a minimum term of imprisonment as a punishment for crime, which power resides exclusively in the Legislature.

Petitioner's argument is based upon the proposition that, since section 8 of Chapter IX of the code fails to fix a minimum term of imprisonment for a first offense, sentence thereunder is illegal and his first conviction cannot furnish a basis for computing successive convictions under the habitual criminal act (§ 10 et seq., supra).

In the Matter of Homer Franks, Mich., 297 N.W. 521, 522, decided April 8, 1941, the court said: ‘And if it be assumed that sentencing petitioner as a fourth offender was unlawful, rather than irregular, still his right of review was by appeal, not by habeas corpus.’ See authorities therein cited and In re Spencer, 252 Mich. 48, 232 N.W. 748, and In re Moynahan, 255 Mich. 497, 238 N.W. 169.

We have thus repeatedly held that habeas corpus will not be permitted to perform the functions of a writ of error. Petitioner does not question the validity of the habitual criminal act but confines his complaint to the validity of the indeterminate sentence law. Although his remedy is not by habeas corpus and his petition for that writ must be denied, we shall, however, in this instance re-examine the question of the constitutionality of the indeterminate sentence law. We do this in order that we may again show the futility of continued applications to this court, based upon the claim that the petitioner and others in like circumstances are illegally confined in State institutions.

The habitual criminal act was passed to provide a punishment for repeated commissions of felonies. People v. Palm, 245 Mich. 396, 223 N.W. 67. The act is concerned with prior convictions and not the sentences under those convictions. Southard makes no complaint of the validity of any of his three convictions.

The present indeterminate sentence law (3 Comp.Laws 1929, § 17336 [Stat.Ann. § 28.1080]) came into our criminal procedure by Act No. 136, Pub.Acts 1903, and has been amended by Act No. 184, Pub.Acts 1905, and No. 259, Pub.Acts 1921, and reenacted in the Code of Criminal Procedure, Act No. 175, pub.Acts 1927. This section reads: ‘When any person shall hereafter be convicted for the first (1st) time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. 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. He shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict, which facts and such other facts as shall appear to be pertinent in the case, he shall cause to be entered upon the minutes of the court.’

In Re Lambrecht, 137 Mich. 450, 100 N.W. 606, 608, decided in 1904, the court said: ‘After the first act providing for indeterminate sentences was declared unconstitutional (People v. Cummings, 88 Mich. [249] 253, 50 N.W. 310,14 L.R.A. 285), the people adopted a constitutional amendment authorizing such sentences. The present act was passed in accord with that amendment.’ (Referring to the 1903 act.)

People v. Cummings was decided in 1891 and dealt with the constitutionality of Act No. 228, Laws of 1889. In that case the act was declared unconstitutional because the Legislature attempted to confer judicial power with respect to length of imprisonment on an administrative body.

In 1902 (see Public Acts of 1903, p. 452) the people amended the Constitution of 1850 by adopting what was thereafter designated as Article IV, § 47, which reads: ‘The legislature may, by law, provide for the indeterminate sentences, so called, as a punishment for crime, on conviction thereof, and for the detention and release of persons imprisoned or detained on said sentences.’

This was carried over into the Constitution of 1908. Section 28 of Article V of that Constitution reads: ‘The legislature may provide by law for indeterminate sentences, so called, as a punishment for crime, on conviction thereof, and for the detention and release of persons imprisoned or detained on said sentences.’

Pursuant to the constitutional amendment of 1902, the Legislature in 1903 enacted an indeterminate sentence law. This law was upheld in Re Manaca, 146 Mich. 697, 110 N.W. 75. The 1905 amendment of this act was sustained in People v. Cook, 147 Mich. 127, 110 N.W. 514.

In Re Leonard, 137 Mich. 457, 100 N.W. 579, 580, decided the same day as the Lambrecht case, in affirming a minimum sentence of ten years, the inherent power of the judiciary to fix the minimum term of imprisonment was recognized. The court said: ‘Section 1 of the indeterminate sentence law contains a provision that, in all cases where no minimum sentence is fixed by law, the court imposing sentence shall fix such minimum, which shall not be less than six months. Under this provision of the statute, the court was undoubtedly authorized to fix the minimum sentence-none being fixed in the statute prescribing the penalty for the offense of which petitioner was convicted-and the sentence is clearly valid.’

Petitioner argues that we have said, as late as in the case of People v. Harwood, 286 Mich. 96, 281 N.W. 551, 552, that; ‘Length of imprisonment for felony is for legislative determination and not subject to judicial supervision.’ See also People v. Morris, 80 Mich. 634, 637, 45 N.W. 591,8 L.R.A. 685;People v. Smith, 94 Mich. 644, 54 N.W. 487;People v. Whitney, 105 Mich. 622, 63 N.W. 765; and People v. Palm, 245 Mich. 396, 223 N.W. 67. This statement, repeated in all these cases, must be considered in the light of its context. In each of these cases it was argued that the penalty as fixed by the Legislature constituted cruel and unusual punishment in violation of State and Federal Constitutions. None of these cases involved delegation of power.

In the Palm case it was pointed out that the discretion of the trial court as to maximum sentences was taken away by a statute which imposed a mandatory life sentence in certain instances for fourth offenders. See 3 Comp.Laws 1929, § 17340 (Stat.Ann. § 28.1084).

It is interesting to note that former attacks upon the indeterminate sentence law have been on the ground that the statute deprived the courts of their discretionary power and delegated control over sentence either to administrative or executive bodies, in violation of constitutional safeguards. See People v. Cummings, 88 Mich. 249, 50 N.W. 310,14 L.R.A. 285, and People v. Cook, 147 Mich. 127, 110 N.W. 514.

Objection to the delegation of the power of the judiciary over sentences was met by the constitutional amendment of 1902 (Art. IV, § 47, Const. 1850, as amended, and Art. V, § 28, Const.1908). The amendment did not take away the inherent judicial power to exercise discretion in the imposition of sentences. That power always resided in the...