People v. Freleigh, 69

• Decision Date: 03 September 1952
• Docket Number: No. 69,69
• Citation: 54 N.W.2d 599,334 Mich. 306
• Parties: PEOPLE v. PRELEIGH.
• Court: Michigan Supreme Court

Page 599

54 N.W.2d 599

334 Mich. 306

PEOPLE v. PRELEIGH.

No. 69.

Supreme Court of Michigan.

Sept. 3, 1952.

James E. Haggerty, Harry Cohen, William Bramson, Detroit, for defendant and appellant.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Solicitor Gen., Lansing, Gerald K. O'Brien, Prosecuting Atty. County of Wayne, Ralph Garber, Chief Asst. Prosecuting Atty., Garfield Nichols, Asst. Prosecuting Atty., Chief Appellate Division, George W. Miller, Asst. Prosecuting Atty., Appellate Division, all of Detroit, for the People.

Before the Entire Bench Except NORTH, C. J.

BUTZEL, Justice.

Fred Freleigh, defendant, was convicted of a felony, and on supplemental information charging him with being a second offender, he was found guilty and setenced to serve a term of not less than two years, four months, three days to seven and one-half years, the statutory maximum, with a recommendation of one year. Although the conviction was over ten years ago, he has not fully served his sentence owing to the fact that he was released on parole for an interim period and later returned to custody for parole violation. He presented a petition for review on October 4, 1951, pursuant to C.L. 1948, § 769.14, as added by P.A. 1951, No. 159, Stat.Ann. 1951 Cum.Supp. § 28.1085(1), which provides:

'Any person now incarcerated in any state prison, or on parole from a sentence thereto, who was sentenced under the terms of sections 10, 11, 12, or 13 of this chapter as in effect prior to the effective date of Act No. 56 of the Public Acts of 1949, shall be entitled to a review of sentence upon application to the court in which he was sentenced. Upon such application any judge of such court may vacate the previous sentence and impose any lesser sentence which in his judgment might have been imposed under sections 10, 11, 12, or 13 of this chapter, as amended by Act No. 56 of the Public Acts of 1949, had such sections as amended been in force at the date of the previous sentence imposes upon said prisoner: Provided, That any sentence so imposed shall be deemed to have begun as of the date of the previous sentence, and the rights of such prisoner under the laws shall be governed by the lesser sentence as then imposed.'

The Hon. George Murphy, Judge of the Recorder's Court for the city of Detroit, doubting the validity of Act No. 159 and basing his decision on an opinion of the Attorney General of the State of Michigan, held the act to be unconstitutional and denied appellant's petition. We allowed an appeal.

Article VI, § 9 of the Constitution of 1908 provides:

'He (the governor) may grant reprieves, commutations and pardons after convictions for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to regulations provided by law relative to the manner of applying for pardons. Upon conviction for treason, he may suspend the execution of the sentence until the case shall be reported to the legislature at its next session, when the legislature shall either pardon or commute the sentence, direct the execution of the sentence or grant a further reprieve. He shall communicate to the legislature at each session information of each case of reprieve, commutation or pardon granted and the reasons therefor.'

Article V, § 28, of the Constitution of 1908 provides:

'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.'

This latter section was added to the Constitution after this court in the absence of such a provision had held the indeterminate sentence law unconstitutional.

P.A. 1927, No. 175, Ch. 9, §§ 10-13, being C.L. 1948, §§ 769.10-769.13, Stat.Ann. § 28.1082-28.1085, provided for certain mandatory sentences to be imposed on criminals convicted of more than one felony. The statutes provided for sentencing on an indeterminate basis for second, third and fourth offenders.

P.A. 1949, No. 56, amending C.L. 1948, §§ 769.10-769.13, Stat.Ann 1951 Cum.Supp. §§ 28.1082-28.1085, made new provisions for the sentencing of habitual criminals, giving the trial court in its discretion the power to impose less than the former mandatory sentence upon the offender.

Subsequently P.A. 1951, No. 159, was passed by the legislature. Both parties concede that Act No. 159, supra, is a legislative attempt to give P.A. 1949, No. 56,...