Wiest, C. J.
This is an appeal in behalf of the people from a holding in the circuit court for the county of Ionia, that Act No. 196, Pub. Acts 1937 (Comp. Laws Supp. 1937, § 17329-1
et seq.,
Stat. Ann. § 28.1072
et seq.),
is unconstitutional and refusal of that court to act under its provisions.
April 19, 1937, in the recorder’s court for the city of Detroit, on his plea of guilty, George Frontczak, a resident of Detroit, was convicted of gross indecency and sentenced to a minimum term of 30 days and a maximum term of five years in the Detroit house of correction. From that prison he was transferred to the Michigan reformatory at Ionia. Before enactment of Act No. 196, Pub. Acts 1937, defendant was serving his sentence in the reformatory at Ionia. While defendant was so confined, under sentence, the enactment at bar became effective on July 14, 1937. On July 21, 1937, the State commissioner of pardons and paroles filed a petition
in the circuit court for the county of Ionia, invoking action under the new statute to have defendant committed to a State hospital on the ground, employing the language of the statute, that defendant “though not insane, appears to be a sex degenerate, and appears to be suffering from a mental disorder characterized by marked sex deviation, with tendencies dangerous to public safety.”
To understand properly the points involved it is necessary to mention the provisions of the former statute, which the act of 1937 purported to amend and extend.
Act No. 175, Pub. Acts 1927, revised, consolidated and codified the laws of the State relating to criminal procedure, and designated the same “the code of criminal procedure.” See 3 Comp. Laws 1929, §§17116-17512. Chapter 9 of that code (3 Comp. Laws 1929, §§ 17329-17354) relates to judgments and sentences in criminal cases. By Act No. 88, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 17329-1, Stat. Ann. § 28.1073), that chapter was amended by adding a new section at the end to stand as section la thereof, under which courts of record, having jurisdiction of criminal offenses, were empowered:
“When a person convicted of * * * indecent exposure, * * * gross indecency, * * * shall, though not insane, feeble-minded or epileptic, appear to be psychopathic, or a sex degenerate, or a sex pervert, with tendencies dangerous to public safety, the trial court before pronouncing sentence shall institute and conduct a thorough examination and investigation of such person, and of all the facts and circumstances, shall call two or more reputable physicians, including one psychiatrist and other credible witnesses. * * * If it is proved to the satisfaction of said judge or a jury that such person is psychopathic, or a sex degenerate, or a sex pervert, possessed of
mental tendencies inimical to society, and that, because thereof, such person is a menace to the public safety, then the court, in pronouncing sentence, shall so adjudge: Provided, however, That upon such examination and investigation, such person shall be entitled to a jury hearing. If a prison or jail term is imposed, the court shall include in the commitment an order that upon expiration of such prison or jail term, * * * said person be removed and committed to such suitable State hospital or State institution as the court may designate in such commitment, to remain in such State hospital or State institution until said court shall adjudge that such person has ceased to be a menace to the public safety because of said mental condition.”
This amendment to the code of criminal procedure was the genesis of the further amendment and addition in 1937, which is involved in the case at bar, and is quoted to show that the procedure there provided was in the trial court, before the trial judge and before sentence, and with right of the accused to a trial by jury of the vicinage.
Passing consideration of the validity of that addition, as not here involved, we come to the amendment of 1937, which amended the above section and added five new sections, of which the amendment and one added section are here principally involved.
Act No. 196, Pub. Acts 1937, amended section la (Comp. Laws Supp. 1937, § 17329-1, Stat. Ann. 1938 Cum. Supp. § 28.1073) of the former act so as to provide for the examination and procedure after conviction and before sentence, and for commitment to a suitable State hospital, with suspension of sentence or holding the same in abeyance, “until the court, upon application by the superintendent or assistant superintendent of the institution or any other interested party, and hearing, after receiving a report from the medical superintendent,
or after proceeding in the manner herein required upon the original examination and investigation, shall find that such person has ceased to be a menace to the public safety because of such tendencies and mental condition: Provided, however, That such examination, investigation and hearing shall be held at least once each year by the court unless waived by such person in open court.”
The section also provides that upon such release the court may impose sentence and commit such person to prison for the term provided by law for his offense, awarding him time, however, spent in the hospital or may place him on probation or release him from further custody as the circumstances may warrant.
It is to be noted that this amendment retained jurisdiction in the trial court over the whole procedure.
We now come to the added section lb, of the 1937 act (Comp. Laws Supp. 1937, § 17329-2, Stat. Ann. 1938 Cum. Supp. § 28.1073[1]), effective after defendant’s conviction, sentence, and imprisonment, and reaching not only subsequent offenders but previous offenders. That section provides:
“If any such hearing shall not have been conducted by the court sentencing any person upon conviction or plea of guilty of any of the said offenses, and such person shall have been committed to any penal institution, jail or prison, and if prior to the expiration of his sentence or his discharge, pardon, or parole, such person, though not insane, shall appear to be a sex degenerate or a sex pervert, or appear to be suffering from a mental disorder characterized by marked sexual deviation, with tendencies dangerous to public safety, the commissioner of pardons and paroles shall file his petition in the circuit court of the county where such person may be confined, setting forth the facts relative to said
conviction and said prisoner, and the circuit court of said county shall institute and conduct a thorough examination and investigation of such person, and shall otherwise proceed in the manner provided in section one-a of this chapter.
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Wiest, C. J.
This is an appeal in behalf of the people from a holding in the circuit court for the county of Ionia, that Act No. 196, Pub. Acts 1937 (Comp. Laws Supp. 1937, § 17329-1
et seq.,
Stat. Ann. § 28.1072
et seq.),
is unconstitutional and refusal of that court to act under its provisions.
April 19, 1937, in the recorder’s court for the city of Detroit, on his plea of guilty, George Frontczak, a resident of Detroit, was convicted of gross indecency and sentenced to a minimum term of 30 days and a maximum term of five years in the Detroit house of correction. From that prison he was transferred to the Michigan reformatory at Ionia. Before enactment of Act No. 196, Pub. Acts 1937, defendant was serving his sentence in the reformatory at Ionia. While defendant was so confined, under sentence, the enactment at bar became effective on July 14, 1937. On July 21, 1937, the State commissioner of pardons and paroles filed a petition
in the circuit court for the county of Ionia, invoking action under the new statute to have defendant committed to a State hospital on the ground, employing the language of the statute, that defendant “though not insane, appears to be a sex degenerate, and appears to be suffering from a mental disorder characterized by marked sex deviation, with tendencies dangerous to public safety.”
To understand properly the points involved it is necessary to mention the provisions of the former statute, which the act of 1937 purported to amend and extend.
Act No. 175, Pub. Acts 1927, revised, consolidated and codified the laws of the State relating to criminal procedure, and designated the same “the code of criminal procedure.” See 3 Comp. Laws 1929, §§17116-17512. Chapter 9 of that code (3 Comp. Laws 1929, §§ 17329-17354) relates to judgments and sentences in criminal cases. By Act No. 88, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 17329-1, Stat. Ann. § 28.1073), that chapter was amended by adding a new section at the end to stand as section la thereof, under which courts of record, having jurisdiction of criminal offenses, were empowered:
“When a person convicted of * * * indecent exposure, * * * gross indecency, * * * shall, though not insane, feeble-minded or epileptic, appear to be psychopathic, or a sex degenerate, or a sex pervert, with tendencies dangerous to public safety, the trial court before pronouncing sentence shall institute and conduct a thorough examination and investigation of such person, and of all the facts and circumstances, shall call two or more reputable physicians, including one psychiatrist and other credible witnesses. * * * If it is proved to the satisfaction of said judge or a jury that such person is psychopathic, or a sex degenerate, or a sex pervert, possessed of
mental tendencies inimical to society, and that, because thereof, such person is a menace to the public safety, then the court, in pronouncing sentence, shall so adjudge: Provided, however, That upon such examination and investigation, such person shall be entitled to a jury hearing. If a prison or jail term is imposed, the court shall include in the commitment an order that upon expiration of such prison or jail term, * * * said person be removed and committed to such suitable State hospital or State institution as the court may designate in such commitment, to remain in such State hospital or State institution until said court shall adjudge that such person has ceased to be a menace to the public safety because of said mental condition.”
This amendment to the code of criminal procedure was the genesis of the further amendment and addition in 1937, which is involved in the case at bar, and is quoted to show that the procedure there provided was in the trial court, before the trial judge and before sentence, and with right of the accused to a trial by jury of the vicinage.
Passing consideration of the validity of that addition, as not here involved, we come to the amendment of 1937, which amended the above section and added five new sections, of which the amendment and one added section are here principally involved.
Act No. 196, Pub. Acts 1937, amended section la (Comp. Laws Supp. 1937, § 17329-1, Stat. Ann. 1938 Cum. Supp. § 28.1073) of the former act so as to provide for the examination and procedure after conviction and before sentence, and for commitment to a suitable State hospital, with suspension of sentence or holding the same in abeyance, “until the court, upon application by the superintendent or assistant superintendent of the institution or any other interested party, and hearing, after receiving a report from the medical superintendent,
or after proceeding in the manner herein required upon the original examination and investigation, shall find that such person has ceased to be a menace to the public safety because of such tendencies and mental condition: Provided, however, That such examination, investigation and hearing shall be held at least once each year by the court unless waived by such person in open court.”
The section also provides that upon such release the court may impose sentence and commit such person to prison for the term provided by law for his offense, awarding him time, however, spent in the hospital or may place him on probation or release him from further custody as the circumstances may warrant.
It is to be noted that this amendment retained jurisdiction in the trial court over the whole procedure.
We now come to the added section lb, of the 1937 act (Comp. Laws Supp. 1937, § 17329-2, Stat. Ann. 1938 Cum. Supp. § 28.1073[1]), effective after defendant’s conviction, sentence, and imprisonment, and reaching not only subsequent offenders but previous offenders. That section provides:
“If any such hearing shall not have been conducted by the court sentencing any person upon conviction or plea of guilty of any of the said offenses, and such person shall have been committed to any penal institution, jail or prison, and if prior to the expiration of his sentence or his discharge, pardon, or parole, such person, though not insane, shall appear to be a sex degenerate or a sex pervert, or appear to be suffering from a mental disorder characterized by marked sexual deviation, with tendencies dangerous to public safety, the commissioner of pardons and paroles shall file his petition in the circuit court of the county where such person may be confined, setting forth the facts relative to said
conviction and said prisoner, and the circuit court of said county shall institute and conduct a thorough examination and investigation of such person, and shall otherwise proceed in the manner provided in section one-a of this chapter.
“If it shall be determined and adjudged by the court that such person is a menace to public safety for any of the reasons stated in the petition, the court shall enter an order that said person be removed and committed to such suitable State hospital or State institution as the_ court may designate in such order, sentence to be suspended or held in abeyance during the time such person is in the custody of such institution and such person to remain in such State hospital or State institution until the said court, upon application and proceedings in accordance with the provisions of section one-a, shall find that said person has ceased to be a menace to the public safety because of said tendencies and mental condition. Upon such finding, such person shall be released from the custody of such hospital or institution and after allowing and crediting on the sentence originally imposed the time spent in any such hospital or institution, the court shall return such person to the jail or prison to which he was formerly committed, to serve the remainder of his sentence (if any) according to law, subject to any parole or other further order affecting such person.”
This enactment is more than an inquest relative to the mental condition of a prisoner because the company in which it is found is a part of criminal procedure following conviction of a criminal offense and after sentence and during confinement and, in the instance at bar, removed from the jurisdiction of the trial court and domicile of the prisoner and vested in another court, at a point removed from the prisoner’s former domicile, and where he is to be tried by a jury in a vicinage where the criminal law
has him in confinement and where he committed no crime. The statute requires the petition to negative insanity of the prisoner, and there is no law of the State penalizing or subjecting to hospitalization any person who appears “to be a sex degenerate” and appears “to be suffering from a mental disorder characterized by marked sexual deviation, with tendencies dangerous to public safety.” When the law penalizes an overt act it cannot, under criminal procedure and under the guise of hospitalization, in another court and a different jurisdiction, try him on the footing of his conviction elsewhere and add to or subtract or change his sentence.
Section lb, added by the 1937 act, if considered a part of criminal procedure, is void, as subjecting an accused to two trials and convictions in different courts for a single statutory crime, with valid sentence interrupted by supplementary proceeding in another court, with confinement in a non-penal institution and with possible resumption of imprisonment under the original sentence.' If not for a single offense, then one trial is for a penalized overt act and the other for having a mental disorder, characterized by marked ‘ ‘ sexual deviation. ’ ’ For an overt act offense the accused has a right to trial by jury of the vicinage, while under this act, for no statutory offense, he is to be tried by a jury of another vicinage, possibly far removed from his former domicile and friends and, if penniless and friendless, and the procedure is not under the criminal code he cannot obtain counsel or have witnesses at public expense. If the procedure is not under the criminal code, then the enactment is no amendment or addition to that code and a mere estray and a nullity. We must class it where we find it placed by its authors, and we find
it in the mentioned criminal code chapter relating to judgments and sentences in criminal cases.
The attorney general contends that it is a civil proceeding and analogous to statutory inquests relative to insane prisoners, which is civil in nature.
It is obvious that in such instances the inquest bears no relation to the conviction; jurisdiction attaches because of insanity. In the instance at bar jurisdiction is not given until after conviction and the prisoner is averred to be sane and change in confinement under sentence is contemplated for, while undergoing hospitalization, he gets credit on his sentence.
Hospitalization, with curative treatment and measures may be desirable but, until the law makes a sane person amenable to compulsory restraint as a sex deviator, it falls short of due process in merely providing procedure.
Under this act defendant is under sentence for an overt sex deviation offense and, as a potential like offender, it is sought to keep him in confinement under exercise of the police power. The police power, under such circumstances, is not a civil proceeding, comparable to that in cases of insane persons.
The mentioned amendment and addition do not fall within the title, unless constituted criminal procedure and, as such, violates the constitutional provision securing the rights of an accused. Const. 1908, art. 2, § 19.
Affirmed.
Sharpe, Potter, Chandler, and North, JJ., concurred with Wiest, C. J.