People v. Morris

• Decision Date: 09 May 1890
• Citation: 45 N.W. 591,80 Mich. 634
• Court: Michigan Supreme Court
• Parties: PEOPLE v. MORRIS et al.

45 N.W. 591

80 Mich. 634

PEOPLE v. MORRIS et al.

Supreme Court of Michigan

May 9, 1890

Error to circuit court, Kalamazoo county.

D. G. F. Warner, for appellant.

George P. Hopkins, Pros. Atty., for the People.

GRANT J.

The respondents were charged with the larceny of a horse of the value of $150. The information contained two counts,-one framed under the general statute for larceny; and the other charging the larceny under section 9180 of Howell's Statutes, which is an act to provide for the prevention and punishment of horse-stealing. The respondents, upon being arraigned, pleaded guilty. The court made the customary investigation for the purpose of determining whether their plea was made freely, with the full knowledge of the accusation against them, and without undue influence. The court, therefore, sentenced Morton to the state's prison for six years and nine months, and Morris for seven years.

Under the first count, respondents' sentence could not have been more than five years. Under the second count, their sentence could have been not less than three nor more than fifteen years, unless it was their first offense, in which case the court might have sentenced them to the state house of correction for a term not exceeding two years. It is contended that the sentence is erroneous for two reasons, viz.: (1) Because the plea of guilty applied only to the first count, under which the maximum penalty is five years. (2) Because section 9180, How. St., is unconstitutional, in that the punishment provided by it is "cruel or unusual."

1. The first contention cannot be maintained. Where there are two counts charging different grades of the same offense, under a conviction or plea of guilty, it has been the general practice in England and in this country to pass judgment according to the count charging the highest grade of offense. In this case the offense was the same set up in both counts. It must be presumed that the respondents understood the information read to them, and that the judge, as required by law, correctly explained the charge against them before passing sentence. It must therefore be presumed that they pleaded guilty to all that the information contained. We find no authorities to the contrary. Dean v. State, 43 Ga. 218; Adams v. State, 52 Ga. 565; Estes v State, 55 Ga. 131; People v. Shotwell, 27 Cal 394; State v. Yuller, 34 Conn. 280; Scott v State, 31 Miss. 473; State v. Core, 70 Mo. 491; Com. v. Hope, 22 Pick. 1; Lyons v. People, 68 Ill. 271; Manly v. State, 7 Md. 135; Conkey v. People, 1 Abb. Dec. 418.

Franklin's Case, 43 N.W. 997, is not in point. In that case there were four counts, containing two distinct offenses, viz., larceny and the receiving of stolen goods. If convicted as a receiver, he could under our statute have avoided state's prison by satisfaction. A proper regard for the rights of a citizen under such circumstances requires that the record should show of which crime the party is convicted. But the reason of that decision does not apply to cases where the law makes different grades of the same offense, nor where by statute the same offense may receive different punishments; nor does the act providing for a distinct punishment for horse-stealing supersede the general statute for larceny. A respondent cannot be prejudiced by a proceeding under the first statute named, nor by counts embodying both statutes. We have statutes providing a different punishment for larceny from the person, from a dwelling-house, at a fire, etc. But it has never been contended that these superseded the general statute for larceny, nor that a person could not be convicted under this general statute, although the facts might warrant a prosecution under the others.

2. Article 6, � 31, of the constitution of this state, provides that cruel or unusual punishment shall not be inflicted. It is to the credit of our country that its courts have seldom been called upon to determine whether legislative enactments infringe this clause of the constitution. The question under this statute is for the first time directly before this court. Indirectly, this statute has been brought before the court on former occasions, but the point has never been decided, though the opinions in those cases contain some expressions hostile to the policy of such legislation. With the policy of the law it is not our province to deal. That belongs to the legislature, which is composed of representatives direct from the people, and who alone have the right to voice the sentiments of the people in the public enactments. When those sentiments are enacted into law, the only province of the court is to determine their validity under the constitution. The rule by which courts must be governed in such cases is as follows: "When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation." By this sound rule, and with but little light to be gathered from the authorities, so few are they, we must approach the discussion and the determination of this question. The difficulty in determining what is meant by "cruel and unusual punishments," as used in our constitution, is apparent Counsel for defendant claims that, as properly understood, it means, when used in this connection, punishment out of proportion to the offense. If by this is meant the degree of punishment, we do not think the contention correct. When, in England, concessions against cruel and unusual punishments were first wrested from the crown, slight offenses were visited with the most extreme punishment, and no protest was made against it. But our concern is to ascertain how this language is to be understood in the constitutional sense. In Re Bayard, 25 Hun, 546, it is said: "We first find the injunction against cruel and unusual punishment in the declaration of rights, presented by the convention to William and Mary before settling the crown upon them in 1688. That declaration recites the crimes and errors which had made the revolution necessary. These recitals consist of the acts only of the former king and the judges appointed by him, and one of them was that 'illegal and cruel punishment had been inflicted.' The punishments complained of were the pillories, slittings, and mutilations which the corrupt judges of King James had inflicted without warrant of law, and the declaration was aimed at the acts of the executive; for the judges appointed by him, and removable at pleasure, were practically part of the executive. It clearly did not then refer to the degree of punishment, for the criminal law of England was at that time disgraced by the infliction of the very gravest punishment for slight offenses, even petit larency then being punishable with death. But the declaration was intended to forbid the imposition of punishment of a kind not known to the law or not warranted by the law." Justice Cooley says "Probably any punishment declared by statute for an offense which was punishable in the same way at the common law could not be regarded as cruel or unusual, in the constitutional sense; and probably any new statutory offense may be punished to the extent and in the mode permitted by the common law for offenses of similar nature. But those degrading punishments, which in any state had become obsolete before its existing constitution was adopted, we think may well be held forbidden by it as cruel and unusual. We may well doubt the right to establish the whipping post and pillory in states where they were never recognized as instruments of punishment, or in states whose constitutions, revised since public opinion had banished them, have...