#### James Scrinegrour, Plaintiff in Error, *vs.*The State of Wisconsin, Defendant in Error. Dennis Libby, Plaintiff in Error, *vs.*The State of Wisconsin, Defendant in Error.

The act of the Territorial government of Wisconsin, entitled “ An aet to provide for the punishment of offences against private property,” *(Revised Statutes,*350,) by the 15th Section of which, provision i,s made for the punishment of the offender by imprisonment not exceeding two years, nor less than three months, or by fine not exceeding three hundred dollars, is so far qualified by the 16th Section of the act, as that it is limited by the punishment , prescribed by the 16th Section.

There is an apparent discrepancy between the two Sections, which confer upon two distinct tribunals jurisdiction, over the same of-fence: the one providing for a greater, and the other a lesser punishment. In such a case it is safer to regard the Section adopting the *major*punishment, as overruled by the one, providing tho more lenient one..

Error to the Sheboygan Circuit Court.

An indictment was found against each of the plaintiffs in error, in the suits above entitled', for larceny under the fifteenth section of'the act of the Territorial Government of Wisconsin, to provide for the punishment of offences against private property, *(Revised Statutes, page*850.) Both defendants in these indictments were convicted, and by the presiding Judge, (the Chief Justice) sentenced, Scrinegrour to one, and, Libby to two years’ imprisonment in the county jail of Sheboygan County. ■ *

Each of the defendants brought their writ of error to this Court upon the basis, that the sentence of punishment, was in derogation of the Statute above referred to,

*49The presiding Judge holding that in trials for these of-fences, he was invested with Judicial powers under the provisions of the fifteenth section of the act referred to, to inflict such punishment as was authorized by that section, when the indictment was found, and tried in his Court; and regarding that he was not to be governed by or Restricted to the punishment which was prescribed by the sixteenth section of the same act, when the offence was prosecuted before a Justice of the Peace, and his power of punishment was limited to a far less inflictiop. than that provided by the fifteenth section,

*Holliday,*counsel for thp defendants,

argued that the two sections of the Statute were inconsistent with each other. That in a trial had af the Circuit, the presiding Judge had no power to sentence the accused to any greater punishment than by the sixteenth section was provided; and that it was an anomaly in legislation, that a statute, conferring upon two distinct tribunals the jurisdiction, to try an offender for the same crime, the one tribunal hav.-ing power to punish by a greater, and the other being restricted to a much less infliction. That, in favor of liberty, and the humanity with which penal Statutes were to be construed, the lesser punishment provided by the Statute was the only one which either Court could; inflict.

*Brown, Attorney General,*argued,

that notwithstanding the two sections of the Statute provided different punish- . ments for the same offence, under the distinct tribunals, in which jurisdiction was vested, yet'- that the two provisions were not in collision with each other, but that each Court had the power to inflict such punishment, as by the Statute was vested in them respectively; and by that *50by the Statute, each tribunal was invested with jurisdiction to punish, commmensurate with the extreme jurisdiction conferred. That it might not be wise or judicious, that the jurisdiction of the same matter, in one Court, should be subject to a different ¡rule of action from that prescribed for another Court, having a co-ordinate juris■diction, though not the same rank in judicial importance. But nevertheless each tribunal was invested with judicial power to punish to the maximum of the Statute, without regard to the functions with which another Court was invested, should the trial happen before it. It will be perceived by the opinion of the Court, that both of these cases embrace the same principle, and are controlled by the same decision.

*By the Court*

Stow, C. J.

These cases involving precisely the same question, and having been argued together, but one decision is necessary for both. The plaintiffs in error were severally convicted before me at the September Sheboygan circuit, on separate indictments of simple larceny, in stealing property of less value than twenty dollars; and were severally sentenced, Scrine-grour to one, and Libby to two years imprisonment in the county jail. They were, as appeared very clearly by the evidence, both cases of great aggravation: and I felt it my duty to make a severe example, and accordingly imposed on one the highest punishment allowed by the 15th section of the act under which they were convicted, and on the other, who was already a states prison convict, one year’s imprisonment. On a careful examination of the different provisions of the Statute, the Court is of opinion that these judgments are erroneous; and in this opinion I concur. By the 15th section >of the “ Act *51for the punishment of offences against private property,” *Revised Statutes*3501 it is provided, that in cases of sim- • pie larceny, not exceeding one hundred dollars (without ■any minimum limitation) the punishment shall be imprisonment in the county jail not more than two years, nor less than three months; or a fine not exceeding three hundred dollars: thus leaving a very wide range for the discretion of the Court, to be exercised according to the circumstances of the particular case — the age, character, &c., of the offender. Were this all the provision on the subject, a doubt could not be raised. But by the following, 16th section of the same act, concurrent jurisdiction with the Circuit Court is given to Justices of the Peace in .cases of simple larceny, when the alleged value of the property stolen does not exceed twenty dollars, “ in all which cases, the punishment shall be by fine not exceeding fifty dollars, or by imprisonment in the county jail for the term of three months.” While it can hardly be supposed that the Legislature, in giving a certain limited concurrent authority to a Justice, intended' thereby to take away the before expressly granted authority of a superi- or Court of record, yet the statute may be so construed, and in favor of personal liberty, we so hold. We think there is nothing in the argument, that by a different construction, a criminal might be subjected to different, degrees of punishment for the same offence, as he might happen to be tried in different courts; such cases are not uncommon.

The judgments are reversed; and the prisoners having-been confined already more than three months, are to be .discharged.