People v. Smith

54 N.W. 487, 94 Mich. 644, 1893 Mich. LEXIS 569

• Court: Michigan Supreme Court
• Decided: February 17, 1893
• Status: Published

Opinion

Grant, J.

The respondent was convicted of receiving stolen property, under How. Stat. § 9142. The information charged that the property taken was of the value of one dollar; was the property of one William J. Plackett; and that it had been stolen. The respondent, upon arraignment, pleaded not guilty, and proceeded to trial •without any objections to the form of the information. He was sentenced to the State prison for five years.

1. His counsel now insists that the information is defect' ive, in that it does not allege when, where, or by whom the larceny of the property was committed. The objection comes too late. It should have been taken by demurrer, or by motion to quash. How. Stat. § 9535; People v. Schultz, 85 Mich. 114. The objection itself, however, is. without merit. This Court has already decided that in such an information it is not necessary to allege the time and place of the theft. People v. Goldberg, 39 Mich. 545.

2. It is urged that the sentence is cruel and unusual, since the property received was of the value of less than $25, and the thief, upon conviction, could not have been sentenced to prison for more than one year. Upon the Legislature alone is conferred the power to fix the minimum and maximum of the punishment for all crimes. A law which provides a greater maximum penalty for receiving-stolen property than for the larceny of it cannot be held to authorize cruel and unusual punishment.

3. No question of the restitution of the property is raised upon this record. If the respondent desired to avoid imprisonment in the State prison by making restitution, if it was the first offense, it became his duty to show that fact to the court before sentence. People v. Hubbard, 86 Mich 440. The record is entirely silent upon this point.

Judgment affirmed.

The other Justices concurred.