are several kindred acts in this State, prescribing a less severe punishment, which include, to a greater or less extent, elements of the offense created by the act under which respondent was convicted. As a consequence, it is said the legislature has so arranged these laws that the prosecuting attorney may at will choose the one under which he will proceed, and thus decide the penalty to be inflicted upon the accused, usurping in effect the power of the court to exercise its discretion in pronouncing sentence. The prosecuting attorney has been declared by this court to be a quasi judicial officer, and is vested with certain discretionary powers in the administration of the criminal law. As was pointed out in People v. Morris, supra, the laws of this State, as well as of other States, present numerous cases of similar statutes covering allied offenses and degrees of offense, like the different forms of assault and of larceny, in which the nature of the case might render it possible for the prosecutor to bring any one of several different charges against the accused. So long as these laws are not repugnant, they are not invalid because the accused could have violated more than one of them at the same time in a certain transaction.

It is claimed, however, that said Act No. 64, under which respondent was convicted, is repugnant to sections 11545-11548, and particularly section 11506, 3 Comp. Laws; the latter section covering the identical offense of which respondent was convicted, and which prescribes a much lighter minimum punishment than the one under which he was charged. Sections 11545-11548 of said 3 Comp. Laws define, grade, and fix the penalty for various forms of statutory burglary, covering breaking and entering, entering without breaking, in the nighttime and in the daytime, armed and unarmed, with and without making an assault, a dwelling house or other prescribed buildings, occupied and unoccupied, committing or attempting to commit, under the various conditions enumerated, different stated crimes. In none of these sections is any mention made of the use

of explosives. They are readily distinguishable from, and not repugnant to, the statute in question.

Section 11506, entitled "An act relating to the punishment of bank, safe and vault robbery," is as follows:

"SECTION 1. The people of the State of Michigan enact, that whoever, with the intent to commit the crime of larceny, or any felony, shall confine, maim, injure or wound, or shall put in fear any person for the purpose of stealing from any building, bank, safe, or other depository of money, bonds, or other valuables, or shall by intimidation, fear, or threats compel, or attempt to compel any person to disclose or surrender the means of opening any building, bank, safe, vault, or other depository of money, bonds, or other valuables, or shall attempt to break, burn, blow up, or otherwise injure or destroy any safe, vault, or other depository of money, bonds, or other valuables in any building or place, shall, whether he succeeds or fails in the perpetration of such larceny or felony, be punished by imprisonment in the State prison for life or any term of years."

This statute was enacted in 1877, 30 years before said Act No. 64. If yet in force in all its provisions, it would seem clearly applicable to the facts in this case, and the prosecuting attorney could properly have charged the respondent with a violation of the older statute, under which his minimum sentence might be but two years. The act, however, does not in the portion relating to the use of explosives specifically make the breaking and entering of a building with intent to commit crime an ingredient of the offense, nor name the various high explosives, the use of which shall constitute the crime of "burglary with explosives," as does said Act No. 64. Under the older law, respondent could be convicted without proof that he broke and entered a building with intent to commit crime, if it were shown he at any time or anywhere attempted to break, burn, blow up, etc., for the criminal purposes charged, while under the later law he could not.

When acts are pari materia, though enacted at different times and not referring to each other, they are to be taken and construed together, as explanatory of and sup

plemental to each other, and sustained, if possible, in order to effectually carry out the legislative intent and produce a consistent and harmonious system. In the disposition of this case, it is not necessary to determine whether or not such a result can be reached here, and both statutes sustained. Conceding that said section 11506, passed in 1877, is inconsistent with, and repugnant to, said Act No. 64, passed in 1907, and applying the rule of construction which obtains in such cases, the later law prevails, and the earlier falls.

"It is a principle of universal application in the construction of statutes that, if two legislative provisions are found to be inconsistent, the court in construing them will give effect to the later expression of legislative will. Therefore, if two statutes make inconsistent provisions for the punishment of the same act, the later repeals the earlier. * * * In the absence of an express repealing clause, a subsequent statute repeals a former one only so far as the two are inconsistent." 1 McClain on Criminal Law, §§ 91, 92.

This is an old and long established doctrine. In the early case of Rex v. Cator, 4 Burr. p. 2026, it appeared that two statutes had been enacted punishing the offense of enticing away artificers to foreign parts. The earlier act imposed a punishment not exceeding £100 and imprisonment of 3 months for the first offense, and for a second offense a fine in the discretion of the court, and imprisonment for 12 months. The later statute, defining the same offense, imposed a forfeiture of £500 and imprisonment for 12 months for the first offense, and for the second a forfeiture of £1,000 and imprisonment for 2 years. It was held that the second statute repealed the first, the court saying:

"By the latter act, there is no discretion left in the court. The punishment directed in it is peremptory."

It has also been held where two acts of different dates, covering the same offense, are found upon the statute books, that when the legislature imposed in the second

act a different punishment for the offense, whether it be smaller or larger than the former one, the former is repealed by implication. Nichols v. Squire, 5 Pick. (Mass.) 168. This subject has been reviewed and numerous authorities cited in Commonwealth v. Davis, 77 Mass. (11 Gray) 48, wherein a former statute defining and providing the punishment for maintenance of a disorderly house was held to have been repealed by a subsequent statute upon the same subject prescribing more severe penalties.

In the case at bar, if, as claimed by respondent, the two statutes under consideration cover identically the same offense, providing a different and greater punishment in the later, the earlier is repealed, and therefore said Act No. 64 of the Public Acts of 1907, under which respondent was convicted and sentenced, stands alone, as the only law in this State under which he could be prosecuted for such offense.

For these reasons, we are constrained to hold that said act is constitutional and valid, that the court pronouncing sentence was not without jurisdiction, and the judgment must stand affirmed.

MOORE, C. J., and MCALVAY, BROOKE, STONE, OSTRANDER, and BIRD, JJ., concurred. Kuнn, J., did not sit.

PEOPLE v. DUNSTON.

1. CRIMINAL LAW-DIVORCE-DESERTION-ABANDONMENT. Desertion or abandonment of wife and family within the meaning of Act No. 144, Pub. Acts 1907, includes both the idea of a wilful and perpetual separation by the husband and failure to support.

2. SAME ALIMONY-WIFE DESERTION-HUSBAND AND WIFE. After respondent's wife had procured a divorce from him, awarding to her the custody of their minor children, and requiring him to furnish a stated sum each week for the support of the two children, his failure to comply with the order as to payments did not constitute abandonment under Act No. 144, Pub. Acts 1907.

Exceptions before sentence from Oakland; Smith, J. Submitted November 14, 1912. (Docket No. 130.) Decided December 17, 1912.

William E. Dunston was convicted of deserting and abandoning his minor children. Reversed: respondent discharged.

Carl H. Pelton, Prosecuting Attorney, and Clinton McGee, Assistant Prosecuting Attorney, for the people. Andrew L. Moore, for respondent.

STEERE, J. This case involves the question of whether or not respondent is liable to criminal prosecution for desertion and abandonment of his children, as defined in Act No. 144 of the Public Acts of 1907; he having previously been divorced from his wife, to whom the court had granted possession and custody of their minor children, decreeing an allowance to be paid to her for said children's support, which allowance respondent has failed to fully pay. Respondent was arrested, prosecuted, and convicted under said Act No. 144 in the circuit court of Oakland county, and has removed the proceedings to this