In re Lambrecht

Grant, J.

{after stating the facts). 1. The attorney general conceded that the indeterminate sentence act, if retroactive, is unconstitutional and void in so far as it authorizes crimes committed before it took effect to be punished under it. This is obvious, for the punishment is increased, as the minimum punishment under the act is greater than that provided by section 11784, subd. 2, .3 Comp. Laws.

Is the act retroactive F The legislative intent must govern when it can be ascertained. “ It is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.” Cooley, *454 Const. Lim. (6th Ed.) 455; End. Int. of Stat. § 271 ; Angell v. City of West Bay City, 117 Mich. 685 ( 76 N. W. 128 ). The legislature is presumed to know that penal' statutes cannot be made retroactive. It should therefore-be held that they intended such a statute to act prospectively, if the language would reasonably permit such a. construction.

“A thing which is within the spirit of a statute is within the statute, although not within the letter; and the thing within the letter is not within the statute, unless within the intention.” Common Council of Detroit v. Rush, 82 Mich. 542 ( 46 N. W. 951 , 10 L. R. A. 171).

We are therefore of the opinion that the legislature, im providing for the sentence of persons “hereafter convicted of crime,” intended only crimes committed after the act took effect.

2. Is the previous law (3 Comp. Laws, § 11784) — the-statute in force when the crime was committed — repealed, by the indeterminate sentence act of 1903 ? We can look only to the statute for any crime punishable in this State. We look to the common law for definitions and principles, in our criminal’jurisprudence, but, unless the statute provides a penalty, acts criminal at the common law are not; crimes in this State. In re Lamphere, 61 Mich. 105 ( 27 N. W. 882 ). If the penalty for attempts be taken away,, the entire statute falls with it. Under petitioner’s contention, therefore, the law of attempts is repealed by the act of 1903, and no such law is now in force. Other criminal statutes would also be repealed. The legislature will not-be presumed to have intended such a wholesale repeal of' criminal statutes, and jail delivery of all those guilty of' crimes under such statutes, but not then convicted and sentenced. “An interpretation of a statute which must-lead to consequences which are mischievous and absurd is-inadmissible, if the statute is susceptible of another interpretation by which such consequences can be avoided.”"Suth. Stat. Con. § 238; Alvord v. Lent, 23 Mich. 369 .

*455 “Not unfrequently a clause is inserted in a statute repealing all laws in conflict or inconsistent with it, ‘ contravening ’ it, or the like. If the provisions of the former and present enactments are in direct contrariety, the repeal takes place, but only to the extent of the repugnance. If, on the other hand, by any reasonable contracting, expanding, cutting short, or extending of the old laws or the new, as explained in the foregoing chapter, they can be brought into harmony without repeal, the interpretation should be so, and all suffered to stand together.” Bishop on Stat. Crimes, par. 2, § 152.

See, also, Smith v. People, 47 N. Y. 330 . Where a subsequent act is absolutely repugnant to and inconsistent with any other provisions of a prior act, the former act is repealed to the extent of such repugnance only, and the repugnancy must be clear and unavoidable. Connors v. Iron Co., 54 Mich. 168 ( 19 N. W. 938 ); Tillotson v. City of Saginaw, 94 Mich. 240 ( 54 N. W. 162 ); Crane v. Saginaw Circuit Judge, 111 Mich. 496 ( 69 N. W. 721 ).

A statute in conflict with a prior statute in so far as the one is in conflict with the other, is no more effective as a repeal than if such repealing clause were omitted. In either case the former statute is repealed in so far as the later one is in conflict with it. In Murphy v. Commonwealth, 172 Mass. 264 ( 52 N. E. 505 , 43 L. R. A. 154, 70 Am. St. Rep. 266 ), the indeterminate sentence act is nearly identical in its terms with that of Michigan. It was held that it did not repeal a prior act which entitled a prisoner to a deduction for good behavior. The court in that case Said:

‘ ‘ To hold that that statute operates by necessary implication as a repeal of it to that extent, as it would seem that we should be obliged to do if the statute of 1895 (Stat. 1895, chap. 504) is construed to apply to all sentences to State prison after it took effect, whether the offenses occurred before or after it went into operation (Flaherty v. Thomas, 12 Allen, 428 , and Commonwealth v. McDonough, 13 Allen, 581 ), would result in the discharge of all persons who might have been sentenced under it to the State prison for offenses committed before it took effect. *456 On the other hand, by construing it, as we think properly may be done pursuant to the general rule that statutes are to be construed prospectively, to apply to sentences for offenses committed after it took effect, this difficulty will be avoided.”

After the first act providing for indeterminate sentences was declared unconstitutional (People v. Cummings, 88 Mich. 249 [ 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. It was not intended to repeal any of the statutes providing for criminal offenses. It recognized such crimes as still existing under the various laws of the State, and provided only a new mode or character of punishment, which the people and the legislature believed would tend to the reformation of criminals. It was evidently intended, and should be regarded, rather as an amendment to the criminal statutes. We must therefore hold that it did not operate as a repeal of the statute under which the petitioner was convicted.

3. It follows that the petitioner could not have been sentenced under the indeterminate sentence act. The court imposing the sentence considered that the petitioner should be sentenced for at least 2% years. The sentence would-evidently have been no less if the court had imposed the sentence under section 11784. In Murphy v. Commonwealth, supra, which was before the court on writ of error, the prisoner was remanded for sentence under the prior law. It is contended that this court cannot so order under the writ of habeas corpus, where the sentence has been partly executed. We need not determine this point. In People v. Cummings , which was also brought to this court on a writ of error, the sentence was affirmed as to the minimum term. If the sentence was a valid one as to such term upon a writ of error, it would not be good logic to'say that it was void when coming before the court on a writ of habeas corpus. If valid in the one case, it is *457 equally valid in the other. In this respect we must follow our own decisions.

The sentence for the minimum time is therefore affirmed, and the prisoner remanded to complete that term of imprisonment, in accordance with the law and rules in existence at the time of the commission of the crime.

The other Justices concurred.