The defendant was convicted of assault in the second degree, and sentenced to imprisonment in the State prison for the term of not less than one nor more than five years. This sentence was imposed in compliance with the amendment of the Penal Code which directs that “ a person never before convicted of a crime punishable by imprisonment in the State prison, who is convicted of a felony, the maximum penalty for which, exclusive of fines, is imprisonment for five years or less, and sentenced to a State prison, shall be sentenced thereto under an indeterminate sentence, the minimum of which shall not be less than one year, or in case a minimum is fixed by law, not less than such minimum, and the maximum of which shall not be more than the longest period fixed by law for the punishment of the crime of which the offender is convicted.”
The defendant seeks a release on the ground that this law providing for an indeterminate sentence is unconstitutional.
The objections to the law may be classified as follows:
First. That the release is a judicial power and that a statute which permits a release or parole to be granted by administrative officers is unconstitutional.
Second. That the power to release conferred on the prison officials infringes the Governor’s constitutional pardoning power.
Third. That the sentence is void for uncertainty.
The Constitution has committed to the Legislature the power to define crime, and within definite limits to regulate its punishment. The Legislature has frequently enacted that certain crimes must be punished by the offender’s imprisonment for a definite and arbitrary term of years, irrespective of any palliating circumstances and leaving no discretion to the court. It has also and in many cases provided that the commission of certain other' crimes may be punished by the offender’s imprisonment for not less than a certain term of years, nor more than another definite term of years, and in this way the criminal law has been enacted and administered in this State for many years. The Legislature has always treated as within its exclusive province the power to define crime and to prescribe its punishment.
The law which we are considering, instead of giving the court discretion to terminate the prisoner’s imprisonment before the expiration of the maximum period prescribed by law, confers upon the prison officials constituting a prison board the power to do so, *116when in their judgment the prisoner’s good conduct and reformation merits such a reward.
The Legislature has in this way exercised its exclusive control over the punishment of crime hy conferring upon prison officials powers which it heretofore conferred upon or withheld from the courts at pleasure.
The objection that the statute interferes with the Governor’s pardoning power is answered by the provisions of the law itself (§ 83), which declares that “ Rothing herein contained shall be construed to impair the power of the Governor of the State to grant a pardon or commutation of sentence.” As long as the offender remains in prison the Governor’s power to pardon him is absolute. If he is released by the operation of this law it is a favor of which the offender cannot complain.
In addition to all this, for many years, under the laws of this State creating and regulating the State reformatories, indeterminate commitments of women and children have been made, many having been committed during minority and others for a definite term, subject to be reduced by good behavior and reformation.
The right of the Legislature to enact such laws and of the prison officials to apply them as occasion arose has in effect been established by the acquiescence of the bar and community for a long period of time.
It is difficult to find a good reason for asserting that the exercise of a legislative power which has been accepted as constitutional pvhen applied to minors should be treated as a violation of the Constitution when applied to adults. A statute similar to ours has been in force in many of the sister states and its constitutionality upheld by the courts. It is useless to string out here extracts from opinions given in such eases, the volumes which contain them are open and easy of access to the profession; it is sufficient to refer to them in a foot-note to this statement.
The objection that the law makes the duration of the sentence uncertain is untenable because the sentence imposed under the statute must be regarded as a definite sentence for its maximum term. There is little doubt but that the present system is better than the one which it supplanted; the prison officials whose duty it is to observe the daily life, study the character traits and investigate the life record of the prisoner can far more correctly and
*117intelligently decide, when a prisoner may be released with advantage to the community, than can the judge, who knows nothing of the accused, except what is revealed by the testimony on his trial. The study made by intelligent men into the working of laws similar to the one under consideration has shown that very many adult convicts, especially first offenders, who have been released under its provisions, have permanently reformed and have become useful members of society.
Before the court at Special Term should declare this law invalid its unconstitutionality should appear beyond question.
The application for the prisoner’s discharge is denied. State ex rel. Atty.-Gen. v. Peters, 43 Ohio St. 629, 81 Ohio L. 72-76, § 5, quoted at p. 644; People ex rel. Bradley v. State Reformatory, 148 Ill. 413; George v. People, 167 id. 447; Miller v. State, 149 Ind. 607; Commonwealth v. Brown, 167 Mass. 144; Murphy v. Commonwealth, 172 id. 264; Oliver v. Oliver, 169 id. 592.
Application denied.