¶1(dissenting):
¶2I do not agree with the conclusion of the majority that the sentence to be imposed upon this appellant is limited by the three-year maximum permitted by 11 Del.C. § 3707.
¶3The appellant in fact plead guilty under 11 Del.C. § 105 to assault which has no limitations upon the sentence to be imposed. In Steele v. State, 2 Storey 5, 151 A.2d 127 (1959), we held 11 Del.C. § 105 to be constitutional, and in Hinckle v. State, 6 Storey 35, 189 A.2d 432 (1963), we held that this Court has no jurisdiction to review an allegedly excessive sentence which fails within the statutorily prescribed limit. The sentence imposed in this case is of that class.
¶4Under the facts of this case the majority thinks the result is an anomaly, but that does not mean it is illegal. As a matter of fact, the difficulty seems to stem from the failure of 11 Del.C. § 105 to distinguish between aggravated assault and simple assault. The statute simply lumps them together. It is apparent that this appellant committed an aggravated assault and was sentenced for it.
¶5I would affirm the sentence and suggest to the General Assembly that it give consideration to clarifying the law in this field. As we pointed out in Cannon v. State, 5 Storey 597, 196 A.2d 399 (1963), the prescribing of penalties for crime is the province of the General Assembly, not the Courts.