Plaintiff in error was convicted in the Recorder’s Court of Detroit on an information for embezzlement, and was sentenced to the Detroit House of Correction for two years. He now' alleges for error that no sentence could lawfully he given requiring him to he confined in that prison more than one year, and that a longer sentence must he only to the State Prison. The statute punishing the offence provides for imprisonment in the State Prison not more than five years, or in the County Jail not more than one year, with a fine. — 2 C L., §5762, §5773.
By Section 16 of the Act establishing the Detroit House of Correction, (A. 1861, p. 268,) it is provided that after the House is completed, and its completion certified, “it shall bo the duty, of every court or magistrate in the said County of Wayne, authorized by law, *366to sentence or commit any person to the county jail of said county, as vagrants, common drunkards, disorderly ■persons, common prostitutes, or for assault and battery, petit larceny, or other offences punishable by imprisonment in the county jail, or by virtue of any final sentence of conviction, except for contempt, to sentence such person to be confined in the said House of Correction,” &c.
The power of commitment is by this language to be exercised only by Courts, &e., authorised to commit any person to the county jail for the specified offences, o.r by virtue of any final sentence. It would be a violation of the language to include any case not punishable by imprisonment in that jail; and it is plain, from other sections of the statute, that for State prison offences the House of Correction can only be used under some arrangement with the State prison inspectors, whereby, for the jmnishment of offences less than treason or murder, it may become a substituted prison for youug offenders, (See Section 11, p. 266.) For offences in Wayne County, it is made, by the statute first cited, a substitute for the county jail, (so far as that section extends,) and no more.
The question, then, arises, whether, in case an offence may be punished by imprisonment in the comity jail ox State prison, in the discretion of the Court, the' offender-may be imprisoned in the House .of Correction for a longer term than was allowed in the county jail, but within the term allowed in the State prison. We think that no imprisonment can be lawful under such a sentence, which would not have been lawful in the county jail. This is the view taken of a similar statute in Shepherd v. the Commonwealth, 2 Metc. 419. It was said in that case that “when the power is .conferred on the Corn-t to sentence either to the State prison or common jail, and they do not sentence to the State prison, we are to presume that in their judgment the actual offence *367was such as ought not to be .punished by imprisonment in the State prison, and that they intend to' adopt the-other alternative. Such' being the ease, if they think fit to substitute the House of Correction instead of the common jail as the place of punishment, the term of time cannot exceed what it would be if the commitment were to the common jail.” We think this is the correct view of the statute; and that when the House of Correction" is made the place of imprisonment for county jail offences* it must be treated as if it were itself, to that extent, the county jail. We think, therefore, that the sentence for more, than one year was unauthorized and invalid. Being-an excess of authority, and therefore an unlawful sentence, we cannot substitute for it another sentence which the Court below might have given, blit "did not give in fact. Rex v. Ellis, 5 B. & C., 395; Rex v. Bourne, 7 Ad. & El., 58; Shepherd v. Commonwealth, supra. There being -no error except in the judgment, there can be no new trial, and the Court below cannot give a second judgment. The judgment must therefore be reversed, and the prisoner discharged.
Cookey and Christiancy JJ. concurred. Martin Ch. J. did not sit in this case.