Dissenting. — I cannot agree with my associates in reading into the statute, sec. 6810, the provision which they construe it as containing providing for a maximum penalty to be left to the discretion of the court. -That part- of sec. 6810 which provides the only penalty therein *409named says that the offense described is punishable by imprisonment in the state penitentiary “not less than five years.” It contains no intimation, however, as to what the maximum penalty is, nor does it contain any suggestion that the maximum is to be left to the discretion of the court. My associates suggest that the maximum penalty is in the discretion of the court, but that such discretion cannot be exercised except in the way of sentencing the defendant to imprisonment, and that the court could not sentence him to be executed. The very fact that the court is forced to say that this statute would not permit the trial court to sentence the defendant to be executed is itself a sufficient answer to the contention made by the majority of the court that the statute leaves the maximum penalty to the discretion of the court. The statute clearly makes no attempt to provide a maximum penalty, and neither does it in terms leave the maximum penalty to the discretion of the court.
The history of this statute demonstrates to my mind the incorrectness of the views expressed in the majority opinion. Sec. 6810 was first enacted by the territorial legislature on February 4, 1864, and then constituted sec. 45 of an act ‘ ‘ concerning crimes and punishments.” (1864 Sess. Laws, p. 35.) Sec. 45 of that act was in the identical language of sec. 6810 of our present Revised Statutes, with the exception that it contained the additional words immediately following the last word in the present sentence, “and which may extend to life.” The section then provided that any person found guilty of the crime therein designated is “punishable by imprisonment in the state penitentiary not less than five years and which may extend to life.” It will be seen at once that when this statute was first written and adopted in Idaho that it authorized a penalty not less than five years and authorized it to be extended to life. When the code commission of 1887 compiled the 1887 statutes, the words “and which may extend to life” were omitted from this statute, and at the same time sec. 6312 was enacted by the legislature and inserted in the Revised Statutes of 1887 for the first time that this *410latter section appeared in the statutes of Idaho. See. 6312 reads 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.”
This section has been carried over into the Revised Codes under the same section number, 6312, and is now a part of the Penal Code of the state. It is apparent to the writer that the code commission of 1887 in compiling the new statute and the legislature in the adoption of the statutes of that year intended to change sec. 45 of the crimes and punishments act of 1864, by omitting therefrom the maximum penalty which might under the old statute be extended to life, and thereafter have the maximum penalty limited by a general maximum penalty statute which the legislature adopted as sec. 6312. In other words, it was the intent of the code commission and the legislature as well to establish the maximum penalty in all felony cases, where a different maximum was not established, at five years’ imprisonment and $5,000 fine. In those cases where the minimum penalty is fixed by the specific statute greater than five years’ imprisonment and $5,000, this general maximum penalty statute would not apply, for the reason that a higher maximum would already be fixed by special statute. Sec. 6312 makes no pretense at dealing with the minimum penalty, and so when it says that “where a different punishment is not prescribed by this code” the penalty shall “not exceed five years’ imprisonment and $5,000 fine, ’ ’ it certainly means that where a different maximum■ penalty is not fixed. In the very nature of the sentence, it could not have reference to a minimum penalty but only to a maximum penalty. See. 6312 makes no pretense at being anything but a maximum penalty statute. It is neither unusual nor inconsistent for one statute to fix the minimum penalty to be inflicted and another and general statute to fix the maximum penalty applicable to all felonies where a different, specific maximum penalty is not prescribed *411by statute. That is just the thing our statute has undertaken to do.
See. 6313 is in the identical language with reference to misdemeanors that see. 6312 uses with reference to felonies, and was intended as a maximum penalty statute for misdemeanors where a different maximum is not prescribed by the specific statute. This court has uniformly held that reference will be had to see. 6313 in misdemeanors for a maximum penalty where a specific statute only defines the minimum penalty. (State v. Mulkey, 6 Ida. 617, 59 Pac. 17; In re Rowland, 8 Ida. 596, 70 Pac. 610; In re Burgess, 12 Ida. 143, 84 Pac. 1059.)
In Be Burgess, this court, speaking of a statute fixing a minimum penalty, said:
“The court may let the prisoner off with either of the foregoing penalties, but nothing short of one of them will satisfy the statute. This statute, it will be observed, does not undertake to prohibit a heavier penalty than therein specified; its purpose is to prohibit a lighter penalty. For the maximum penalty this court has said we should look to section 6313 of the Revised Statutes. That is a general statute fixing the maximum penalty in misdemeanor, cases where a maximum is not fixed by the act defining the offense, and under that statute the punishment may be ‘imprisonment in a county jail not exceeding six months, or by a fine not exceeding three hundred dollars, or by both.’ We are forced to the conclusion that under the statute as it has been interpreted by this court in- two unanimous decisions, the maximum punishment which may be imposed on one convicted of gambling would be a fine of $300 and imprisonment for six months. ’ ’
The opinion of the majority of the court seems to reverse the rule and reasoning adopted by this court in' at least three cases with reference to misdemeanors and establishes a new and unusual rule with reference to the discretion of courts in pronouncing sentence in eases where the statute does not prescribe a maximum penalty. There is no occasion for prescribing a minimum penalty unless to prevent the courts from pronouncing a nominal or very small sentence. A stat*412ute would clearly not be void or objectionable because it failed to prescribe a minimum penalty. The difficulty about failure to specify the penalty arises where the failure is to specify the maximum penalty. Where a statute prescribes, as in this case, that the minimum penalty should be five years in the state penitentiary, the query at once arises as to what is the limit of the sentence that the judge might pronounce against a prisoner-if he saw fit to do so.
There are three classes of penalties that are recognized by the laws of this state that may be pronounced for the commission of crimes: First, a fine; second, imprisonment; third, capital punishment. My associates say that a statute which prescribes five years as the minimum penalty impliedly leaves the maximum to the discretion and sweet will of the judge who tries the case. If that is true, then why could not the judge order the prisoner executed as that is a recognized penalty in this state and the highest penalty that can be pronounced. That is the maximum. If the statute leaves the maximum to the discretion of the judge, then why limit by the opinion of the court such penalty to life imprisonment. This merely illustrates the difficulty the court finds itself in when it departs from sec. 63Í2 which prescribes the general maximum penalty to be inflicted where a different maximum is not prescribed by the statute.
The writ should issue.