Appeal, No. 317, Jan. T., 1959, from judgment of Superior Court, Oct. T., 1959, No. 134, affirming judgment of Court of Quarter Sessions of the Peace of Philadelphia County, June T., 1958, No. 872, in case of Commonwealth of Pennsylvania v. William A. Glover. Judgment reversed. Same case in Superior Court: 189 Pa. Super. Ct. 188. Indictment charging defendant with selling drugs illegally. Before FLOOD, J., without a jury. Verdict of guilty and judgment of sentence entered thereon. Defendant appealed to Superior Court which affirmed judgment, opinion per curiam. Appeal to Supreme Court allowed.
Herman I. Pollock, Defender, with him Bernard Edelson, Assistant Defender, for appellant.
Domenick Vitullo, Assistant District Attorney, with him Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
This is an appeal from a decision of the Superior Court affirming the judgment of sentence of the Court of Quarter Sessions of Philadelphia County. On July 17, 1958, appellant was tried and convicted of giving away drugs in violation of the Drug Act of 1957, P.L. 1013, § 1, 35 P.S. § 865. Even though this itself is an offense, there was evidence that he was to receive in the future some consideration for the transfer. He was thereafter sentenced to the Eastern State Penitentiary for a term of not less than five years nor more than ten years. The evidence relating to the transaction on which appellant was sentenced was that he shared narcotics he was keeping for his own personal use with a fellow user when the latter, saying that he was sick, pleaded with appellant for some drugs. At the time of sentencing the trial judge said that he believed the sentence to be "quite excessive" and was imposing it only because he believed it was mandatory under § 12 of the Act of July 11, 1917, P.L. 758, as last amended by the Act of July 19, 1957, P.L. 1013, § 1, 35 P.S. § 865.
The Act, in pertinent part, provides: "Any person who sells, dispenses or gives away any drugs in violation of the provisions of this act shall be guilty of a felony, and, upon conviction thereof, shall be sentenced as follows: for a first offense, to pay a fine not exceeding five thousand dollars ($5000) and to undergo imprisonment by separate or solitary confinement at labor of not less than five (5) years and not exceeding ten (10) years; ..."
There is no question that it is within the province of the legislature to pronounce what acts, in addition to those recognized at common law are crimes and to fix the punishment of all crimes whether statutory or common law. Commonwealth ex rel. Lycett v. Ashe, 145 Pa. Superior Ct. 26, 20 A.2d 881. The legislature has the right to fix the maximum penalty and likewise can, if it sees fit, name the minimum. If it does so it does not thereby violate Article V, Section 1 of the Constitution, vesting judicial powers in the courts. Commonwealth v. Sweeney, 281 Pa. 550, 127 A. 226; Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61. The only question presented on this appeal is, has the legislature exercised that power in this statute, and, if so, in what respect?
It is appellant's contention that when the act says that the defendant shall "undergo imprisonment by separate or solitary confinement at labor of not less than five (5) years and not exceeding ten (10) years" it means that his maximum sentence shall be not less than five years nor more than ten years.*fn1 On the other hand the Commonwealth contends that the Superior Court and the trial court both correctly interpreted this provision of the Drug Act as imposing a mandatory
minimum sentence of five years and a mandatory maximum sentence of ten years. In effect, therefore, it contends that the only sentence which can be imposed is a sentence of five to ten years. It must be ...