— The petitioner applied to this court for a writ of habeas corpus, and it.is alleged in his petition that he is unlawfully imprisoned in the state penitentiary. The facts set up showing the alleged unlawful imprisonment are as follows: On the 26th of November, 1898, petitioner was found guilty in the district court of Lincoln county of the infamous crime against nature and sentenced to punishment therefor in the state penitentiary for a term of twenty-five years. Thereafter, on or about November 30, 1898, he was delivered into the custody of the officers of the penitentiary pursuant to said sentence, and ever since said date and still is confined in said penitentiary, and it is alleged that as a matter of law the trial court was without jurisdiction to sentence him for a longer term than five years, and that he has long since completed the service of that term and should now be discharged from said imprisonment, and that he is held as a prisoner for no other reason than because of said sentence of twenty-five years’ imprisonment.
Upon that application the writ was issued, commanding the warden of the state penitentiary to produce the body of petitioner and show cause why the prayer of said petition should not be granted. Upon the return day said matter was heard upon a general demurrer to the petition.
*405The first question presented is, Had the trial court jurisdiction to sentence the defendant for more than five years upon his conviction for said crime? The defendant was convicted under the provisions of sec. 6810, Rev. Stats, of 1887, which sections bears the same number in the Revised Codes, and is as follows:
“Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the Territorial prison not less than five years.”
It will be observed that the minimum sentence for that crime is fixed by that section, leaving it to the discretion of the court to fix the maximum sentence, which the court did in this case at twenty-five years.
It is contended by counsel for petitioner that the maximum punishment for said crime is fixed by sec. 6312, Rev. Stats, of 1887, which is the same as sec. 6312, Rev. Codes, which section is as follows:
“Except in cases where a different punishment is prescribed by this Code, every offense declared to be a felony, is punishable by imprisonment in the territorial prison not exceeding five years, or by fine not exceeding five thousand dollars, or by both such fine and imprisonment.”
Under the provisions of said see. 6810, the term of imprisonment fixed is not less than five years and the maximum is left to the discretion of the court, hence, that section prescribes the punishment for said offense, and since both the maximum and minimum sentences are in fact provided for by sec. 6810, the minimum being expressly fixed and the maximum left to the discretion of the court, it does not come within the provisions of see. 6312, as it applies only to offenses where no punishment whatever is prescribed. Said sec. 6312 prescribes the punishment of acts declared to be felonious in cases where the statute did not provide the punishment and was intended to deal fully and completely, so far as the punishment was concerned, with all eases of felony where no other punishment had been provided. It was not intended to supplement other sections of the penal code that had already *406provided a penalty for the punishment of such crimes. Sodomy, the crime for which defendant was convicted, was at common law a felony punishable by death. (36 Cye., p. 502, and authorities there cited.) Under our statutes the only crime punishable with death is that of murder in the first degree, and no one would contend that a court, under the-provisions of said sec. 6810, would have the authority to have a man executed who had been convicted of the crime mentioned in said section, but the legislature no doubt considered it a grave crime and fixed the minimum punishment at five years’ imprisonment, and left it to the sound discretion of the court to fix the maximum according to the facts of each ease.
Many of the penal statutes of this state, as well as of other states, prescribing the punishment by imprisonment for felonies either prescribe a minimum punishment, leaving the-maximum to the court, or prescribe a maximum, leaving the minimum to the discretion of the court, or provide both & minimum and a maximum, leaving any sentence between the minimum and maximum to the discretion of the court. Said sec. 6810 provides that the punishment shall be ‘ ‘ not less than five years”; that is the minimum. Sec. 6312 provides, “Except in eases where a different punishment is prescribed,” every offense declared- to be a felony, is punishable by impris^ onment “not exceeding five years,” so far as imprisonment is concerned. Five years is there fixed as the maximum; or, instead of such imprisonment, a fine not exceeding $5,000, or by both such fine and imprisonment. Then we have this anomalous condition if these two sections are to be construed as affecting the same crime: The same term of imprisonment is prescribed in each section, one the maximum and the other the minimum, and the one providing that five years’ imprisonment shall be maximum has only the additional punishment of a fine not exceeding $5,000. So if these two sections be construed together, the maximum prescribed by sec. 6312 is the minimum prescribed by sec. 6810. In construing them both together, the term of imprisonment is absolutely fixed at five years — no more, no less — minimum and maximum *407being the same. It does not seem probable that the legislature should have contemplated such a condition of things as would exist if said sections are construed together, one as providing the maximum and the other a minimum punishment. Said sec. 6312 applies only to felonies where no other punishment is fixed and where no penalty whatever is prescribed by other provisions of the statute. And said section 6810 in order of number, at least, is subsequent to sec. 6312. Supposing sec. 6810 had prescribed the minimum punishment at not less than six years, would anyone then contend that sec. 6312 had any application to the case? We think not.
It is next contended that the decisions of this court in State v. Mulkey, 6 Ida. 617, 59 Pac. 17; In re Rowland, 8 Ida. 595, 70 Pac. 610, and In re Burgess, 12 Ida. 143, 84 Pac. 1059, are in conflict with the views above expressed. In the three eases cited above, the contention was made that the anti-gambling law was unconstitutional and for the reason that it only fixed the minimum penalty for its violation and established no maximum penalty whatever, and that question was answered in State v. Mulhey, supra, as follows:
“The act in question fixes the minimum punishment, but does not fix the maximum. Section 1 of said act makes the offense a misdemeanor. Section 6313 of the Revised Statutes is as follows: ‘Except in eases where a -different punishment is prescribed by this code, every offense declared to be a misdemeanor is punishable by imprisonment in a county jail not exceeding six months, or by fine not exceeding three hundred dollars, or by both.’ Reading the act in question with said section 6313 of the Revised Statutes, both the maximum and minimum punishment are provided. There is no constitutional objection to the fixing of the minimum punishment only by the legislature in a particular statute.”
And the court held in those decisions, which involved misdemeanors, that as the gambling act fixed only the minimum punishment, the court would look to sec. 6313 to fix the maximum. We think those decisions were right. When we consider that the maximum punishment for a misdemeanor is only a few months’ imprisonment, at most, and generally *408does not exceed a $300 fine, or both such imprisonment and fine, it was dearly not the intention of the legislature to leave the maximum punishment for misdemeanors in the discretion of the court. I know of no statute which fixes the death penalty or imprisonment for life as the maximum punishment for a misdemeanor; and the punishment prescribed by said sec. 6810 is limited to imprisonment, and the death penalty could not be imposed.
It was clearly the intention of the legislature to fix the maximum punishment for all misdemeanors which were not otherwise fixed, by see. 6312, at not to exceed six months imprisonment or by a fine not exceeding $300, or by both such fine and imprisonment. The crime which the legislature has named in said sec. 6810 was under the common law punished by death. The legislature fixed the minimum penalty by the provisions of said sec. 6810, and it is clear to me that they intended to and did leave the maximum punishment to the sound discretion of the court, and did not limit the maximum by the provisions of said sec. 6312. it was not intended that the maximum punishment for a misdemeanor should extend to life or be left to the discretion of the court, and it was intended that for the heinous crime of which defendant was convicted the minimum punishment should not be less than five years, and the maximum punishment was left to the discretion of the court. As touching upon this question, see People v. Nop, 124 Cal. 150, 56 Pac. 786; People v. Stouter, 142 Cal. 146, 75 Pac. 780.
The action is dismissed, the writ quashed and the prisoner' remanded to the custody of the warden of the state penitentiary.
Stewart, J., concurs.