The opinion
After our original opinion was entered, the district attorney petitioned for, and we granted, a rule to show cause why the order of October 2, 1945, should not be revoked. On the return day he and the prisoner presented oral arguments. The district attorney candidly conceded that the statutes providing for indeterminate sentences apply only to crimes punishable by commitment to penitentiaries, and not to crimes punished by simple imprisonment. He contended, however, that in the absence of a statute prohibiting indeterminate sentences, a judge may in the exercise of his judicial discretion, derived from the common law, impose indeterminate sentences for crimes punishable by simple imprisonment.
He frankly stated that an exhaustive research failed to reveal any authority which supports his position. Our own research has verified that result. We have not found one case in Pennsylvania or elsewhere which holds that indeterminate sentences were authorized or even recognized at common law or that such sentences may be pronounced for any crime, whether punishable by simple imprisonment or otherwise, without specific legislative sanction. Wherever the question has been examined, the conclusion has been uniformly to the contrary. "A sentence of imprisonment for an indeterminate period is insufficient and invalid unless authorized by statute: 24 C.J.S., Criminal Law § 1993. See also Brown v. State, 18 Ala. App. 154 , 89 So. 845 ; Smith v. Bastin, 192 Ky. 164 , 232 S.W. 415 ; Cook v. State, 111 Neb. 590 , 197 N.W. 421 .
Even if it were discovered that the power to impose indeterminate sentences was recognized at common law, the power could not be exercised in Pennsylvania. The Penal Code of June 24, 1939, P.L. 872, § 1104, 18 Pa.C.S.A. § 5104 , substantially re-enacting the Act of March 31, 1860, P.L. 382, § 183, provides: "In all cases where a remedy is provided or duty enjoined, or anything directed *Page 226
to be done by the penal provisions of any act of assembly, the direction of said act shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act into effect." (Italics supplied). It follows that only to the extent that the power to impose indeterminate sentences has been authorized by statute is its exercise valid and lawful. Cf. Com. ex rel. Cox v. Ashe, 146 Pa. Super. 365 , 22 A.2d 606 ; Com. v. Clark, 123 Pa. Super. 277 , 187 A. 237 .
The rule to show cause why the order of October 2, 1945, should not be revoked is discharged.