O'Neil v. People

Christiancy J. The plaintiff in error was convicted of an attempt to commit larceny from the person of one Rachael Thompson, and sentenced to be confined at hard labor in the state prison for the period of three years; and the question is, whether this period of imprisonment does not exceed that which the statute has prescribed for the offense of which he was convicted. The punishment for the completed offense of larceny from the person, as fixed by the statute, is “imprisonment in the state prison not more than five years, or by imprisonment in the county jail not more than one year.” — 2 Comp. L. § 5761. Section 11 of chapter 192, Compiled Laws, for the punishment of attempts to commit crimes, is in the following words: “Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commis^on of such offense, but shall fail in the perpetration, or shall be intercepted or ' prevented in the execution of the same, when no ex]iress provision is made by law for the punishment of such attempt, shall be punished as follows: 1. If the offense attempted to be committed is such as is punishable with death, the person convicted of such attempt shall be punished by imprisonment in the state prison not more than ten years. 2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or,for five years or more, the person convicted of such attempt shall be punished by imprisonment in the state prison not more than three years, or in the county jail not more than one year. [280] 3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than five years, or by imprisonment in the county jail, or by fine, the offender convicted of such attempt shall be punished by imprisonment in the county jail not more than one yeai, or by fine not exceeding three hundred dollars; bxxt in no case shall the punishment by imprisonment exceed one-half of the greatest punishment which might have been inflicted if the offense so attempted had been committed.” The only question is, whether the 'last provision in the third subdivision (limiting the puxxishment by imprisonment to one-half the greatest punishment which might have been inflicted for the offense if completed), applies as well to the offenses pi’ovided for in the second, as to those in the third subdivision. We see no reason to doubt that such was the intention of the statute. The reasons for limiting the period of imprisonment for an attempt to commit an offense, to one-half that provided for the consummated offense, are, in our view, equally strong, in the cases provided for in the second subdivision as for applying the same limitation to those mentioned in the third, and this being so, there should be some plain reason furnished by the language of the statute, to confine the operation of the clause to the third subdivision only. We can discover nothing in the language of the provision or in the punctuation to thus confine it. On the other hand, the prohibition is general, and all the terms used apply equally well to both subdivisions, “but in no case shall the punishment by imprisonment exceed,” etc. Had it been the intention to confine the operation of the clause to the cases of “imprisonment” mentioned in the third subdivision, we should naturally have expected some indication of the intention thus to limit it, such as “in no case mentioned in this subdivision,” or something of similar import. [281] If the attention of the judge was called to the statute, he may have been misled by inferring from the latter clause of the second subdivision, that this subdivision was complete in itself, and had fixed a different limit for the ratio of punishment between an attempt and a completed offense, from that fixed by the third. But it will be seen that without this limitation found in the third subdivision, the second would fix the same limitation for an attempt to commit an offense punishable by imprisonment for life as for one punishable with but five years; and for the purpose of approximating a ratio in the various cases, this general limitation of subdivision two was made subject to the further limitation' at the close of subdivision three. We are, therefore, of opinion that the imprisonment for the offense of which the defendant was convicted, is limited to two years and a half. The sentence exceeded this limit,, and is therefore void for the whole. — Elliott v. The People, 13 Mich. 365. The judgment must be reversed, and the defendant discharged. Campbell and Cooley JJ. concurred. Martin Ch. J. did not sit in this case.