#### Ex parte Thorpe.

(Decided April 16, 1940.)

*Mr. A. K. Meek,*for petitioner.

*Mr. Thomas J. Herbert,*attorney general, and *Mr. Grary Davis,*for respondent.

*129TIoenbeck, P. J.

Petitioner seeks in this action in *habeas corpus*to secure his release from the London prison farm where he is a prisoner under sentence of the Common Pleas Court of Summit county, Ohio.

-It appears from the agreed statement of facts that the petitioner was indicted fbr, tried, and convicted of the offense of criminal libel under Section 13383, General Code, and sentenced to the Ohio state penitentiary for a period of not less than two years, nor more than five years. The petitioner was received at the Ohio penitentiary October 3, 1936, and transferred to the London prison farm on June 17, 1938. On June 10, 1938, the parole board, after due advertisement, 1‘ continued the question as to whether or not plaintiff should be paroled, until the expiration of his maximum sentence. Plaintiff has passed the entire period of his imprisonment without violation of the rules and discipline of both and each of the institutions in which he has been confined.”

If the parole board acted in conformity to law in continuing the question of the release of the petitioner until the expiration of his maximum sentence he may not be discharged until October 2, 1941. If he is entitled to the good time which he has earned he should have been released of date February 3, 1940.

The petitioner insists that the latter view of the law should be taken by this court, and the state insists that the former statement of the law is correct.

The briefs, particularly that of the respondent, are extended. The sole determinative question is whether the section under which the petitioner was sentenced provides for a definite sentence and if so, was such sentence pronounced.

The section under which the petitioner was convicted, Section 13383, General Code, effective August 30, 1935, provides:

“Whoever writes, prints or publishes a false or malicious libel-of, or concerning, another * * * shall *130be fined not more than $500 or imprisoned not more than five years, or both. ’ ’

The determination as to whether an offense committed under this section is a misdemeanor or a felony is made by the trial judge in the pronouncement of the sentence. The offense was classified as a felony by virtue of petitioner’s sentence to the penitentiary.

Section 2166, G-eneral Code, passed in the present form in 114 Ohio Laws, 188, as of date of April 10, 1931, insofar as germane to our question provides:

‘ ‘ Courts imposing sentences to the Ohio penitentiary for felonies, except treason, and murder in the first degree, shall make them general and not fixed or limited in their duration. “ **** If through oversight or otherwise, a sentence to the Ohio penitentiary should be for a definite term, it shall not thereby become void, but the person so sentenced shall be subject to the liabilities of this chapter and receive the benefits thereof, as if he had been sentenced in the manner required by this section.”

This section had, from as early a date as March 24, 1884 (81 Ohio Laws, 74), provided that:

“Every sentence to the institution of a person hereafter convicted of a felony, except for murder in the second degree, who has not previously been convicted of a felony and served a term in a penal institution, shall be, if the court having said case thinks it right and proper to do so, *a*general sentence of imprisonment in the penitentiary.”

This provision authorizing the trial judge to administer a general sentence was carried into the acts of April 14, 1884 (81 Ohio Laws, 186), and April 11, 1890 (87 Ohio Laws, 164), and the requirement that sentences be general is found in the act of February 13, 1913 (103 Ohio Laws, 29). There is also found the provision that no such term should be less than the minimum term provided by law nor more than the maximum so provided. The act of March 15, 1921 (109 *131Ohio Laws, 64), provided for general sentences but required the trial judge to fix a minimum within the limits prescribed by law. The present law was effective as of August 3, 1931 (114 Ohio Laws, 188).

On May 4, 1891, House Bill No. 1713 was enacted (88 Ohio Laws, 556), a part of which was in the following language:

“In order that good behavior, fidelity and diligence in the performance of duty may be properly rewarded, each convict now confined in any penal institution within the state, or who may hereafter be sentenced for a definite term other than for life, and who shall pass the entire period of his imprisonment without violation of the rules and discipline except such as the board of managers shall excuse, will be entitled to diminish the period of sentence under the following rules and regulations.”

Thereafter are set forth the various deductions of time allowed for good behavior and observance of the rules for different terms of sentences extending from one year up to the limit of a sentence under the statute. This act with modification only in phraseology has been carried continuously in our statutes and is now Section 2163, General Code.

Section 2164, General Code, authorizes the board of managers, now the Pardon and Parole Commission, to deduct from a prisoner “a part or all of the good time gained, for a violation of the rules of discipline, or a want of fidelity and care in the performance of work, according to the aggravated nature or the frequency of the offense.”

Section 2210, General Code, passed April 10, 1931 (114 Ohio Laws, 530), provides:

“A person confined in a state penal institution and not eligible to parole before the expiration of a minimum sentence or term of imprisonment, or hereafter sentenced thereto under a general sentence, who has faithfully observed the rules of said institution, shall *132be entitled to the following diminution of his minimum sentence.”

Then follow the periods of diminution allotted beginning with a sentence of 12 months and extending up to the maximum sentence. These periods are identical with those fixed in Section 2163, General Code. Section 2210, General Code, continues:

“At the expiration of the minimum sentence diminished as herein provided, each prisoner shall be eligible for parole as provided by law. ”

Thus, it appears that any prisoner who is serving a definite sentence for a felony other than for life is entitled as a matter of right to a diminution for good time for a period fixed by Section 2163, General Code, which is applicable to his sentence. If, however, he is serving under a general sentence then he is only entitled as a matter of right to his good time for the purpose of reducing his minimum sentence for the period applicable under Section 2210, General Code, at which time he is eligible for parole, this section, however, having no effect to assure the prisoner any benefit of good time as against the maximum term of his general sentence.

The inconsistent philosophy of Sections 2210 and 2163, General Code, is apparent. "We are without ability to find any underlying reason which will accord the right to a prisoner serving a definite sentence to have his maximum term reduced by his good time and deny that right to one serving an indeterminate sentence whose maximum term is fixed by statute, unless there may be the opinion that prisoners sentenced to a definite term have a vested right under Section 2163, General Code. *State, ex rel. Flora,*v. *Allman,*27 Ohio Law Abs., 355. However, we readily grant that the subject-matter of Section 2210, General Code, is well within the legislative domain and that it is our obligation to accept and interpret the law as we find it and in no sense to undertake to legislate.

*133With this obligation in mind we are remanded to a consideration of the one question, namely, was the sentence of the petitioner definite or was it general?

We are of opinion that, although the sentence in form, as pronounced, must be found to be definite because it undertakes to fix a minimum imprisonment for felony in excess of the minimum contemplated by the statute and a definite maximum, the term of imprisonment is fixed by Section 2166, General Code, and is, in our judgment, general and indeterminate, namely, the shortest period of imprisonment in the penitentiary, within which the prisoner could be legally eligible to parole, to five years, the maximum term fixed by the statute.

This is in accord with the letter and spirit of Section 2166, General Code, which undertakes to make all sentences, except for those offenses especially excepted, general and not fixed or limited in their duration. To accomplish this intent the section specially provides that, even though the trial judge attempts to fix a definite term, the provisions of the statute will have application and the terms will be considered and effective as a general term.

Counsel are agreed in this case that to effectuate the release of the petitioner it is essential that it appear that he was properly sentenced for a definite term. The case of *Reeves*v. *Thomas, Warden,*122 Ohio St., 22, 170 N. E., 646, would clearly have application to support the claim of the petitioner here if the law controlling the power of the trial judge to sentence in this case was the same now as at the time of that judicial pronouncement. The distinction arises in the fact that in the cited case the trial judge was acting under authority of the Norwood Act which authorized and-required the trial judge to fix a minimum sentence. The court pronounced a sentence of seven years which thereby became the minimum and the maximum, which very properly was held to be a definite sentence *134as against which the prisoner was entitled to the benefits of diminution for good behavior as provided in Section 2163, General Code. Judge Allen in *Ex parte Tischler,*127 Ohio St., 404, 188 N. E., 730, at page 430 *et seq.,*employs language which is very helpful in the situation presented in the instant case. On page 411 appears the following:

“Under the law as it now exists, the safeguard for the prisoner must be in the conscientious, fair-minded, and humane viewpoint of the board of parole. A discretionary duty, with great power, is confided to the board under the statutes. Under this discretionary power, a petitioner is not entitled as a matter of right to receive a parole at the expiration of his minimum sentence prior to the expiration of his maximum sentence. Quoting the words of the statute (Section 2211-6, General Code), the board of parole has ‘continuous and exclusive power to determine the time when’ any prisoner confined in a penal or reformatory institution may be allowed to g’o upon parole. The Legislature could hardly have made a more all-inclusive grant of power to such a 'board, and if such power should not exist, the remedy lies, not with this court, but with the Legislature. ’ ’

We are not without authority on the question here presented. In case No. 27405, Court of Appeals of Lawrence county, *State*v. *Atkins*(unreported), decided December 14, 1938, the court had under consideration for review a judgment of conviction of Atkins of assault upon a female child under 14 years of age (Section 12423-1, General Code). The penalty fixed by the statute was a fine of “not more than $1000, or imprisoned in the penitentiary not more than ten years, or both such fine and imprisonment, in the discretion of the court.” The trial judge, in passing sentence, fixed a minimum of five years. The Court of Appeals held that the section did not permit the 'fixing of a definite sentence, but required the imposition of a gen*135eral and. indeterminate sentence and modified the judgment accordingly. It will-be noted that Section 12423-1, General Code, and Section 13383, General Code, under which petitioner was convicted, are alike in that neither section fixes a minimum sentence. There is more doubt about the right of the trial judge to fix a minimum sentence under Section 12423-1, General Code, than under Section 13383, General Code, for the reason that the former section provides that the penalty may be fixed in the discretion of the court. This language is not carried in the latter section. We are cited to *State, ex rel. Flora,*v. *Allman,*27 Ohio Law Abs., 355, wherein we expressed the opinion that the sentence contemplated under Section 12441, General Code, was not for an indeterminate tenure. We do not say that sentences for all felonies other than murder or treason must be general if there is conflict between the specific terms of the statute under which the conviction is had and Section 2166, General Code. If such a situation developed, clearly the specific provisions would control over the general terms of Section 2166, General Code. There is no such conflict in the instant case and the language of Section 13383, General Code, fixing the term of the imprisonment thereunder, may be construed *in pari materia*with the subject-matter of Section 2166, General Code.

We, therefore, conclude that the petitioner’s term of imprisonment is fixed by Section 2166, General Code, and that in effect it is general and not definite and that, although he has been and is eligible for parole (Section 2210, General Code), the right to grant it rests with the Pardon and Parole Commission and that if he is not paroled or pardoned before the maximum period of his sentence, for violation of Section 13383, General Code, he must serve the maximum period therein fixed.

The writ will be denied.

*Writ denied.*

Geiger and Barnes, JJ., concur.