People v. Cummings

• Decision Date: 13 November 1891
• Citation: 88 Mich. 249,50 N.W. 310
• Court: Michigan Supreme Court
• Parties: PEOPLE v. CUMMINGS.

50 N.W. 310

88 Mich. 249

PEOPLE v. CUMMINGS.

Supreme Court of Michigan

November 13, 1891

Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

Daniel Cummings was convicted of larceny, and sentenced to be "confined in the state house of correction and reformatory, at hard labor, for a period of not less than two, nor more than four, years, in the discretion of the board of control of prisons of the state of Michigan." Defendant brings error. Reversed.

James E. McBride, for appellant.

A A. Ellis, Atty. Gen., and W. J. Turner, Pros. Atty., for the People.

MORSE J.

This case involves the constitutionality of Act No 228, Pub. Acts 1889. The act, in full, is as follows "An act to provide for indeterminate sentences, and disposition, management, and release of criminals under such sentence. Section 1. The people of the state of Michigan enact that every sentence to state-prison at Jackson, the state house of correction and reformatory at Ionia, and the state house of correction and branch of the state-prison in the Upper Peninsula, of any person hereafter convicted of a crime, except of a person sentenced for life, or a child under fifteen years of age, may be, in the discretion of the court, a general sentence of imprisonment in that one of the prisons provided by law for the offense of which he is convicted. The term of such imprisonment of any person so convicted and sentenced may be terminated by the board as authorized by this act; but such imprisonment shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced; and no prisoner shall be released until after he shall have served at least the minimum term provided by law for the crime for which he is convicted. Sec. 2. Every clerk of any court by which a criminal shall be sentenced to any prison, whenever the term of sentence may not be fixed by the court, shall furnish the warden or other officer having such criminal in charge a record containing a copy of the information or complaint, of any such plea, the name and residence of the judge presiding at the trial, also of the jurors and witnesses sworn on the trial, with a statement of any fact or facts which the presiding judge may deem important or necessary for the full comprehension of the case, and of his reasons for the sentence inflicted; and such copy, statement, and abstract, signed by the clerk of the court, shall be prima facie evidence against the convicted person in all proceedings for the relief of such person by a writ of habeas corpus or otherwise. The clerk of the court shall be entitled to such compensation in every case in which he shall perform the duties required by this act as shall be certified to be just by the presiding judge at the trial, and shall be paid by the county in which the trial is had, as a part of the court expenses. The clerk shall also, upon any conviction and sentence, forthwith transmit to the warden of the prison to which sentenced notice thereof. Sec. 3. The board of control of prisons shall have power to establish rules and regulations under which prisoners sentenced under this act may be allowed to go upon parole outside of the buildings and inclosures, but to remain, while on parole, in the legal custody and under the control of the board, and subject at any time to be taken back within the inclosure of said prison; and full power to enforce such rules and regulations, and to retake and reimprison any convict so upon parole, is hereby conferred upon said board, whose written order, by its clerk, shall be sufficient warrant for all officers named therein, to authorize such officer to return to actual custody any conditionally released or paroled prisoner; and it is hereby made the duty of all officers to execute such order the same as in any ordinary criminal process. Sec. 4. The board shall make such rules and regulations for the separation and classification of prisoners sentenced under this act into different grades, with promotion and degradation, according to the merits of the prisoners, their employment and instruction in industry, and generally, as may from time to time appear to be necessary or promotive of the purposes of this act. Sec. 5. And it is hereby provided that when any prisoner violating the conditions of his parole or conditional release (by whatever name) is, by a formal order, entered in the board's proceedings, declared a delinquent, he shall thereafter be treated as an escaped prisoner owing service to the state, and shall be liable when arrested to serve out the unexpired period of the maximum possible imprisonment, and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any part or portion of the time served; and any prisoner at large upon parole or conditional release, committing a fresh crime, and upon conviction thereof being sentenced anew to the prison, shall be subject to serve the second sentence after the first sentence is served or annulled, to commence from the date of the termination of the first sentence. Sec. 6. Nothing in this act contained shall be construed to impair the power to grant a pardon or commutation in any case. Approved July 1, 1889."

It is not clear from the reading of this statute whether the board of control is given the power of absolute discharge from imprisonment or not. If so, it would be clearly unconstitutional, as the exercise of such power would be certainly one of two things. It would be either the exercise of judicial power in determining the term of imprisonment of a citizen, or an act of grace, to-wit, the bestowing of a pardon and release of a prisoner before his term of imprisonment had expired. The judicial power of this state, by the constitution, is vested in certain specified courts, (section 1, art. 6,) and the pardoning power is vested absolutely in the governor of the state, (section 11, art. 5.) The first section of the act provides that "the term of such imprisonment of any person so convicted and sentenced may be terminated by the board as authorized by this act, but such imprisonment shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, and no prisoner shall be released until after he shall have served at least the minimum term provided by law for the crime for which he is convicted." But from the other clauses of the statute it may be inferred, perhaps, that this release is in all cases to be a conditional one, and that it is a system of parole that is contemplated by the law. Yet if it be considered that the only power conferred is a conditional release upon parole, still, if the prisoner keeps his parole, or, rather, if the board are of the opinion that he does, the release is in fact an absolute one. By what refinement of reasoning it can be made to appear that this is not in effect a pardon of the prisoner, is beyond my comprehension. And, in my opinion, this act also confers upon the board judicial power. The term of imprisonment is fixed by the board, and not by the court. The sentence is to confinement in the prison generally,-no term is fixed by the judge. How long that term shall be, rests entirely in the will of the board. It may be one day or fifteen years, as they see fit, in some cases. It is in the power of the legislature to fix all punishment for crime, and to provide for a minimum and maximum punishment, and to give the courts in which the prisoners are convicted a discretion to fix a term between these limits, but it cannot be contended for a moment that this discretion can be given to any other person or persons. To do so would imperil the liberties of the citizen by putting his punishment for wrongs committed into the arbitrary power of unauthorized persons, without any right of remedy in the courts. Nor can the legislature authorize a circuit judge to delegate his power and discretion in such a case to any other person or persons than himself.

Under this act, the general sentence, without interference from other parties, must stand for the length of time fixed by the maximum term. The court imposing this sentence has no discretion. It may be truly said that he has a discretion in the first place as to whether he will sentence under the act or not. But this discretion is whether he will delegate his power and authority in the premises to the board of control or not, and we are now dealing with a case where he has exercised this first discretion. It is said that this act "is evidently promoted by a desire to reform as well as to punish; to make better those under sentence as well as to protect society." Let us see how it will work in the interest of reform, and what will be the discretion of the trial judge,-the one person best calculated, from his knowledge of all the incidents and circumstances of the commission of the crime and of the character of the prisoner to exercise a discretion in fixing the term of imprisonment. Take, for instance, a person convicted of manslaughter. The maximum penalty is imprisonment in the state's prison for 15 years; the minimum a fine not exceeding $1,000; the sentence may be one day's imprisonment; it may be a fine of one cent. If the crime appears to be somewhat of an aggravated character, and the prisoner a bad man and an old offender, the circuit judge may reason, "There is no hope of reforming this man, so I will sentence him to ten years in state's prison." At the end of ten years the prisoner is released unconditionally. In another case the nature of the crime may be such that the circuit judge may think the prisoner ought not to be let off with a fine, but deserves some imprisonment; but there is hope for reform, and he therefore concludes to sentence...