People v. Hiller

• Decision Date: 28 May 1897
• Citation: 71 N.W. 630,113 Mich. 209
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HILLER.

71 N.W. 630

113 Mich. 209

PEOPLE v. HILLER.

Supreme Court of Michigan

May 28, 1897

Exceptions from circuit court, Lenawee county; Erastus Peck, Judge.

Thomas J. Hiller was convicted of embezzlement, and brings exceptions. Reversed.

Fred A. Maynard, Atty. Gen., and D. B. Morgan Pros. Atty., for the People.

James H. Davitt, for respondent.

MOORE J.

December 12, 1895, a warrant was issued against the respondent charging him with the crime of embezzlement. Later an information was filed, charging him with the same offense. Upon the trial he was convicted. A number of errors are assigned. The only ones we need to discuss grow out of the question as to whether Act No. 51, Sess. Laws 1895, had the effect to repeal section 9191a, How. Ann. St. The last-named section reads: "The people of the state of Michigan enact, that if any general or special administrator, or any executor or guardian, who has been appointed by a judge of probate, and who has collected any goods, chattels, money or effects of the deceased, and willfully appropriated the same to his own use, and who has been ordered by the judge of probate to forthwith deliver to his successor in trust, all the goods, chattels, money or effects of the deceased in his hands, shall willfully omit, neglect or refuse for thirty days to obey said order, he shall be deemed to have committed the offense of embezzlement, and shall upon conviction thereof, be imprisoned in the state prison, not more than two years, or by fine not exceeding one thousand dollars," etc. The amendment of 1895 changed the law by making the period of omission, neglect, or refusal to obey the order 60 days, instead of 30; and the penalty for the violation of the law, imprisonment for not more than 5 years, instead of 2 years, or by fine not more than $2,000, instead of $1,000. Nothing was said in the act of 1895 about repealing any other law, nor did it contain any saving clause. The act purported to be an act to amend the act as it then existed. It is insisted by respondent that the effect of the enactment of the amendatory act was to repeal the penalty clause in the act of 1889; that the offense charged in the information was committed (if any was committed) before the act of 1895 took effect, and that to apply the penalty provided in the act of 1895 to an offense committed before it took effect would make an ex post facto law of it; and that therefore, the respondent could not be convicted of the offense charged in the information. Repeals by implication are not favored. 23 Am. & Eng. Enc. Law, 489, 496; Suth. St Const. � 138; End. Interp. St. � 210; Crane v. Snow (Mich.) 69 N.W. 721; People v. Grand Rapids & W. P. R. Co., 67 Mich. 9, 34 N.W. 250. The contention of the counsel for the respondent, if allowed to prevail, is likely to result in the escape of some guilty men from deserved punishment, and should not prevail unless sustained by the undoubted weight of authority. It is held, where an act or portion of an act is amended "so as to read" in a prescribed way, that the section amended is entirely repealed, and as to all matters contained in the original enactment, and not incorporated in the amendment, the latter must be held to have the effect of a repeal. End. Interp. St. � 196; 23 Am. & Eng. Enc. Law, 488; Blakemore v. Dolan, 50 Ind. 194; Goodno v. Oshkosh, 31 Wis. 127. A statute providing for or defining an offense created by a previous statute, and providing a materially different punishment, repeals the former act. Suth. St. Const. p. 193; Wilson v. Railway Co., 64 Ill. 542; State v. Campbell, 44 Wis. 529. We understand the rule to be, in criminal cases, in the absence of a saving clause, that where the penalty is altered in degree, but not in kind,...