It is claimed, in the first place, that the act authorizing the trial judge in effect to make the crime either a felony or misdemeanor is an attempt to delegate legislative power to the trial judge, and hence is in violation of article III, section 1, of the constitution of the state, which reads as follows:

"The powers of the government of the state of California shall be divided into three separate departments, the legislative, executive and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function pertaining to either of the others except as in this constitution expressly directed or permitted."

The section does not delegate legislative power. It enumerates the various acts which are prohibited and made criminal, and such acts are made criminal by the express will of the legislature. It prescribes what the law shall be in future cases arising under it. It does not attempt to make the question as to whether or not the act prohibited shall be a crime depend upon the will or discretion of the court or judge. It is the province of the court, through the machinery of a trial, to investigate and determine the question as to whether or not the defendant in the particular case has done the particular act charged as a violation of, and prohibited by, some particular part of the section. The legislature has said the punishment shall be imprisonment not less than thirty days in the county jail or state prison and not exceeding one year. The minimum and maximum punishment is stated. The court cannot make it less nor can it make it greater than the statute prescribes. The places where the defendant is to be imprisoned are stated, and the court cannot send the defendant to any other place than the county jail or the state prison. It was evidently in the mind of the legislature that there should be some power whereby mercy could be shown and discretion exercised in the severity of the punishment, depending upon the act done, the circumstances under which it was done, and the character and age of the person who committed the act. That discretion was left to the trial judge, who is selected by the people as the agent of the people for the purpose of seeing that the laws are applied according to their true spirit and intent. It was not the intention of the legislature that a young person of previous good character for

his first offense, whether intentional or not, should by an unbending rule receive the same punishment as the experienced bookmaker who has followed the racetrack for years. In most crimes the punishment is left to the discretion of the trial court within the limits prescribed by the legislative will, and in some cases with the jury; and it has never been held in any case to which our attention has been called that such power was a delegation of the power vested in the legislature. In murder cases the jury, if it return a verdict finding the defendant guilty of murder in the first degree, may recommend that he be imprisoned in the state prison for life, evidently leaving the jury by its verdict to impose the death penalty or life imprisonment; and such power has never been questioned; and in such case, when the defendant pleads guilty of murder in the first degree, the judge may impose a sentence of imprisonment for life, or in his discretion impose the penalty of death (People v. Dabner, 153 Cal. 398, [95 Pac. 880]). Where the defendant is charged with grand larceny, the jury may, in cases where the evidence would justify a verdict of either grand larceny or petty larceny, bring in a verdict for the lesser offense, which is in effect leaving it to the discretion of the jury to make the crime either a felony or misdemeanor, and yet such power has never been questioned. The punishment for the crime of assault with a deadly weapon is imprisonment in the state prison or in the county jail not to exceed two years, or a fine not to exceed $5,000, or both, thus leaving it to the trial judge to impose a fine of one dollar or a fine of $5,000, or two years in the state prison (Pen. Code, sec. 245). While the section has been in force since the codes were adopted in 1872, and has been before the courts in many cases, it has never been held to be unconstitutional as being a delegation of legislative power.

The Penal Code contains similar provisions as to many other crimes, the punishment imposed for which may make them either felonies or misdemeanors, a few instances of which selected from many are the crimes of seduction for the purpose of prostitution (sec. 262); receiving stolen property (sec. 496); forging telegraph or telephone messages (sec. 474); injuring highways or bridges (sec. 588); fraud in keeping accounts in books of corporations (sec. 563); bribing telephone or telegraph operators (sec. 641). In fact, our whole system

in regard to crimes and punishments necessarily leaves much to the discretion of the jury and to the trial judge. It makes no difference that the legislature has designated certain crimes as felonies, and certain other crimes as misdemeanors, or divided crimes into two classes. The crime is in many cases classified by the punishment under the express provisions of the Penal Code (sec. 17). It was said in People v. Gray, 137 Cal. 267, [70 Pac. 20], in speaking of the crime of seduction: "It may therefore be either a felony or a misdemeanor; whether it is considered the one or the other depends upon the character of the judgment rendered by the trial court. If the judgment be imprisonment in the state prison, the crime is a felony. If a fine only, or imprisonment in the county jail, a misdemeanor. It is provided in section 17 of the Penal Code that in such case, if the judgment impose a punishment less than imprisonment in the state prison, the offense shall be deemed a misdemeanor for all purposes; and that in such a case the offense shall be deemed to be a misdemeanor has been expressly held by this court in a number of cases. (People v. Cornell, 16 Cal. 187; People v. Salorse, 62 Cal. 142; People v. Ayhens, 85 Cal. 88, [24 Pac. 635]; People v. Perini, 94 Cal. 573, [29 Pac. 1027].)" In the last case cited the defendant was prosecuted for receiving stolen goods, which offense is punishable by imprisonment either in the state prison or the county jail, and the court said: "Whether the person convicted of this offense has committed a felony or a misdemeanor can be ascertained by the nature of the judgment. If the defendant is sentenced to serve a term in the state prison, the crime is a felony; otherwise a misdemeanor." (See People v. Smith, 143 Cal. 597, [77 Pac. 449]; In re Sullivan, 3 Cal. App. 193, [84 Pac. 781].)

A felony at common law was an offense punishable by death, or to which the old English law attached the total forfeiture of lands or goods; but the essential difference between a felony and a misdemeanor is now practically lost in England since the felony act of 1870 (Bouvier's Law Dictionary; Moz. & W. Law Dic.). In this country it simply denotes the degree or class of crimes (Bishop's New Criminal Law, sec. 616). In fact, the distinction between a felony and a misdemeanor is for the legislature, and our legislature has expressly stated where a crime may be punishable by imprisonment in the

state prison, and also by fine and imprisonment in the county jail in the discretion of the court, such crime shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. The legislature has designated the classification, and the means whereby such classification shall be ascertained. The distinction between a judicial act and a legislative act has been defined by Judge Field as follows: "The one determines what the law is and what the rights of the parties are with reference to transactions already had. The other prescribes what the law shall be in future cases arising under it. Wherever an act undertakes to determine a question of right or obligation or of property as the foundation on which it proceeds, such act is to that extent a judicial one, and not the exercise of legislative functions." (Sinking Fund Cases, 99 U. S. 700.) And our own supreme court has said: "Legislative power prescribes rules of conduct for the government of the citizen or subject, while judicial power punishes or redresses wrongs growing out of the violation of rules previously established. The distinction in short lies between a sentence and a rule." (Ex parte Shrader, 33 Cal. 279.)

In the case at bar the court will be called upon to declare the law and impose the penalty under the section passed by the legislature making the act a crime. The legislature has vested discretion in the court, but has not authorized the court to determine as to whether or not certain acts would constitute a crime.

It is further claimed that the section violates article I, section 6, of the constitution of the state, which prohibits cruel and unusual punishments. It is hardly necessary to discuss this contention, even if it could be raised by the prisoner, who may never be convicted, and even if he should be convicted might receive a sentence of thirty days in the county jail. Imprisonment in the county jail or in the state prison is not unusual; in fact, it is the most common mode of punishment in all civilized countries. It is not cruel in the sense used in the constitution. Cruel and unusual punishments are punishments of a barbarous character and unknown to the common law. The word, when it first found place in the Bill of Rights, meant not a fine or imprisonment or both, but such punishment as that inflicted by the whipping post, the pillory, burn ing at the stake, breaking on the wheel, and the like; or quar

tering the culprit, cutting off his nose, ears or limbs, or strangling him to death. It was such severe, cruel and unusual punishments as disgraced the civilization of former ages, and made one shudder with horror to read of them. (Cooley's Constitutional Limitations, 7th ed., p. 471 et seq.; State v. McCauley, 15 Cal. 429; Whitton v. State, 133 Ind. 404, [32 N. E. 1019]; State v. Williams, 77 Mo. 310.) The legislature is ordinarily the judge of the expediency of creating new crimes, and prescribing the punishment, whether light or severe. (Commonwealth v. Murphy, 165 Mass. 666, [52 Am. St. Rep. 496, 42 N. E. 504]; Southern Express Co. v. Commonwealth, 97 Va. 59, [22 S. E. 809].)

Counsel for petitioner have devoted many pages of their brief to an analysis of the grammatical construction of the section of the Penal Code in question, contending that it is a complex sentence of over thirty lines, and of such phraseology as to make it impossible to determine what particular acts are necessary to be grouped together to constitute the crime intended to be denounced by the section. It is sufficient to say that the complaint charges the prisoner with doing certain acts which are prohibited by the section, and which, if proven, will subject him to a punishment thereunder. A person of common understanding would by reading the section and reading the complaint know that the defendant was charged with certain acts prohibited by the section. The provisions of the Penal Code must be construed according to the fair import of their terms with a view to effecting their object and to promote justice (sec. 4). Of course, if the act charged is one which is not a crime under any section of the code, the prisoner would have to be discharged, but this is not such case.

It is not necessary to discuss other questions, as we do not deem any of them of sufficient importance to justify us in discharging the prisoner.

We conclude that the section of the Penal Code is constitutional, and that the complaint states an offense thereunder. Let the prisoner be remanded.

Hall, J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 23, 1909.