Supreme Court of Michigan
61 Mich. 105 (1886)

[p. 107] CAMPBELL, C.J.

 The prisoner was convicted in 1877 of an assault with intent to murder, and sentenced to imprisonment for 12 years in the state prison. At the same term of court he was sentenced for larceny to a term of three years, "from and after the expiration of the term of twelve years' sentence this day imposed." . . . . By good conduct the prisoner has saved three years of his twelve-years sentence, and is entitled to his discharge from that. The question raised by the prison authorities is whether they can continue to hold him on the second sentence. The only case which has presented any analogous question in this court is Harris Bloom's Petition, 53 Mich. 597, S.C. 19 N.W.Rep. 200, when the prisoner had been committed to the Detroit house of correction for two terms, of three months each, for the felony of larceny. The form of the second sentence made it run for three months from April 24, 1884, unless the first sentence should sooner expire, or he should be otherwise entitled to release, in which case it was to run for three months from that time. It was held, without discussing any other point, that the second sentence was too uncertain and indefinite as to the time of its commencement, and, in the absence of statute, could not be upheld. [p. 108] The second sentence, in the present case, comes within the same mischief, inasmuch as the time for its beginning is not made to depend on the action of the law, or of any court, and it rests with the prison authorities to determine how much, if any, time is to be allowed for good conduct. We think it is governed by that decision. But, as the subject is one which may call for legislative action for the future, we think it proper to refer to some considerations indulging such action.

 Upon the hearing it appeared, as it did in Bloom's Case, that there is a conflict of authority, which seems to come more from local usage and legislation than from the common law. The relations of this commonwealth to the common law are not altogether conformed to the holdings of some other states. In many of the states, statutes of parliament passed before or during the early days of the American colonies, as well as old colonial statutes and usages, have been recognized as part of the local common law, and have been construed and applied by the courts. But Michigan was never a common-law colony, and while we have recognized the common law as adopted into our jurisprudence, it is the English common law, unaffected by statute. In 1810 an act was passed putting an end to all the written law of England, France, Canada, and the Northwest and Indiana territories, as well as the French and Canadian customs, leaving no statute or code law in force except that of Michigan territory and the United States. 1 Terr.Laws, 900. And while we have kept in our statute books a general statute resorting to the common law for all non-enumerated crimes, there has always been a purpose in our legislation to have the whole ground of criminal law defined, as far as possible, by statute. There is no crime whatever punishable by our laws except by virtue of a statutory provision. The punishment of all undefined offenses is fixed within named limits, and beyond the unregulated discretion of the courts. While we refer with profit to the rulings of other courts, there are many cases where we cannot regard them as binding.

 [p. 109] In the numerous citations in the elementary books, and especially the valuable treatises of Mr. Bishop, he seems to favor the notion that cumulative sentences are recognized as good by common law, as no doubt they are by much American authority on the subject. But the English citations are not numerous, and the oldest one seems to be Wilkes' Case, 4 Brown, Parl.Cas. 360. In that case it was held that two separate sentences, of several months each, for misdemeanor, were lawfully imposed. The fact that the question was removed into the house of lords indicates that there must have been felt some doubt about it, and the decision itself is not much fortified by reasoning or precedents. . . . Nevertheless, ever since, although it may be doubted how long before, it has been held that consecutive sentences were valid on convictions of misdemeanors; and, inasmuch as, under the English law, the power of imprisonment for misdemeanors was largely discretionary, and one sentence might be made to last as long as several sentences, it is not surprising that the subject is not much discussed by the English books. There is, however, no authority to be found, so far as our examinations have gone, and so far as the criminal law citations are found in the best elementary books, which holds that such a practice exists at common law in felonies. . . .

 Whatever elasticity there may be in civil matters, it is a safe and necessary rule that criminal law should not be tampered with except by legislation. Under our constitution this must be done by statutes clearly pointing out in their titles and provisions the precise purpose designed. We have in this state not only county jails, but several public prisons designed to hold different classes of prisoners. In the state prison there can be no imprisonment except for [p. 110] felonies. In other prisons varying rules prevail. It is quite possible for the same offender, in the same court, to be tried for offenses where the confinement must be in different places. If cumulative sentences can be imposed in all cases, the results may be very singular. The imprisonment may begin in one jail, and one next sentence may be in another, and practical difficulties may easily be suggested that can only be solved by legislation. As we have no statutes on the subject, we must, in our opinion, wait until the legislature shall see fit to devise adequate means to avoid these difficulties.

 In our opinion, the prisoner should be discharged.

 CHAMPLIN and SHERWOOD, JJ., concurred.