Defendant, 20 years of age, charged with the crime of rape, was sentenced to life imprisonment on a plea of guilty. Subsequently, on motion for a new trial, a woman, older than defendant, signed an affidavit to the effect that she had given her consent to the sexual act; that, subsequently, there was a quarrel, and defendant struck her. At the time of his plea, defendant had no attorney to advise him as to the elements that make up the crime. He, however, was fully advised in advance that his plea of guilt might result in a sentence of life imprisonment. The statute makes the crime punishable by imprisonment for life or *Page 414 any term of years. The judge had a right to impose life sentence. While some of us would have given defendant a new trial because of the affidavit of the alleged "victim" of the crime, and the fact that defendant had no counsel, nevertheless we find that there was not such an abuse of discretion so that we may properly interfere in the denial of a new trial. It is not within our province to decrease or increase the term of a sentence within the statutory limits. The undue severity of the sentence under the circumstances of the case, however, impels us to examine it more carefully. The State of Michigan has not adopted the suggestion made by leading penologists that the trial court simply determine guilt or innocence of the accused and then refer the length of time of imprisonment to a competent board which could parole the prisoner, but before doing so, would consider the adequacy of the punishment, the rehabilitation of the prisoner and his fitness to re-enter society. We do not know from the sentence what the trial judge intended. Instead of giving the defendant an indeterminate sentence with a minimum of a limited number of years and a maximum of life, the judge in sentencing the defendant, stated as follows:
"We have a system of penology in Michigan where a certain board called the board of paroles and pardons has some authority over the prisoners after they are committed to the prison. * * *
"It is my judgment that inasmuch as the statute has placed the matter of determining the length of sentence in the hands of the parole board to a large extent, that a matter of this kind should be placed as fully as possible with the parole board. The sentence of this court is that you be confined in the Southern Prison of Michigan in Jackson county for a period of your natural life, leaving it to the parole and pardon board to say at such time *Page 415 and under what circumstances, if any, you shall be paroled."
Under chapter 3, § 4, of the law relating to probation (Act No. 255, Pub. Acts 1937), as amended by Act No. 173, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 17543-44, Stat. Ann. 1943 Cum. Supp. § 28.2104), defendant could be released only by the bureau of pardons and paroles after he had served 10 calendar years of the sentence. It may be claimed that the judge intended thus to make the minimum term 10 calendar years and the maximum term life. The language used by the judge indicates that he wanted to leave to the pardon and parole bureau the right to parole defendant at such time as they might thereafter determine. If the trial judge concludes that it is proper that the defendant, who has served almost two years, be eligible to parole after a reasonably short minimum term, and that it be left to the bureau of pardons and paroles to determine when, if ever, he should be paroled, it should be so stated in resentencing the defendant.
Under the circumstances, I believe the sentence should be set aside and the prisoner remanded for resentencing.
BUSHNELL and REID, JJ., concurred with BUTZEL, J. *Page 416