People v. Harwood

The Michigan penal code, Act No. 328, § 209, Pub. Acts 1931 (Comp. Laws Supp. 1935, § 17115-209, Stat. Ann. § 28.406), provides:

"Any person who shall place in, upon, under, against or near to any building, car, vessel or structure, any foul, offensive or injurious substance or compound with intent to wrongfully injure, molest or coerce another, or to injure the property or business of another, or to molest another in the use, management, conduct or control of his business or property, shall be guilty of a felony, punishable by imprisonment in the State prison for not less than five nor more than fifteen years."

Defendant was convicted under this section of placing a foul and offensive substance in a taxicab, at its stand on a public street, rendering it unusable for two weeks, and was sentenced to imprisonment for not less than 5 years nor more than 15 years, with a recommendation of 1 year. He prosecutes review under the claim that the penalty fixed by the statute is cruel and unusual punishment in violation of the State and Federal Constitutions.

The invoked provision of the Federal Constitution has no applicability. Smith v. Wayne Probate Judge,231 Mich. 409 (40 A.L.R. 515). See Collins v.Johnston, 237 U.S. 502, 510 (35 Sup. Ct. 649), where the court stated:

"The eighth amendment is also invoked, with its prohibition of cruel and unusual punishment; but, as has been often pointed out, this is a limitation upon the Federal government, not upon the States. Barron v. Mayor and City Council ofBaltimore, 7 Pet. (32 U.S.) 243, 247; Pervear v.Commonwealth, 5 Wall. (72 U.S.) 475, 480;McElvaine v. Brush, 142 U.S. 155, 158 (12 Sup. Ct. 156); O'Neil v. Vermont,144 U.S. 323, 332 (12 Sup. Ct. 693); Ensign v.Pennsylvania, 227 U.S. 592, 597 (33 Sup. Ct. 321)."

Length of imprisonment for felony is for legislative determination and not subject to judicial supervision. SeePeople v. Morris, 80 Mich. 634, 637 (8 L.R.A. 685); People v. Smith, 94 Mich. 644;People v. Whitney, 105 Mich. 622.

The conviction is affirmed.

BUSHNELL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred. BUTZEL, J., took no part in this decision.