
    SUPREME COURT—APP. DIV.—FOURTH DEPT.,
    Jan. 20, 1909.
    THE PEOPLE v. FRED COSGRIFF.
    (129 App. Div. 851.)
    (1) . Misdemeanor—Petit Larceny Charged as Second Offense.
    Although petit larceny when charged as a second offense is punishable more severely than the first offense, and although the imprisonment may exceed one year, the crime is not thereby made a felony.
    (2) . Same—Jurisdiction of Police Justice of Rochester.
    As the police justice of the city of Rochester has exclusive jurisdiction in the first instance to try all offenses committed within the city of which courts of Special Sessions have exclusive jurisdiction and also has exclusive jurisdiction in the first instance to try any other misdemeanor committed in the city, it is the duty of said magistrate to try one charged with petit larceny as a second offense, for it is a misdemeanor, and he is without power to commit the accused to the sheriff to await the action of the grand jury.
    (3) . Same.
    The section of the city charter providing that said police justice cannot impose an imprisonment exceeding one year for a misdemeanor is qualified by the words “ except where a different punishment is by law prescribed for such offense,” and, hence, he has power to impose the statutory penalty for petit larceny as a second offense although the imprisonment may exceed one year. Nor is he required to commit the prisoner to State’s prison so as to make the crime a felony, for he may sentence the accused to a penitentiary.
    (4) . Same—Rights of One Charged with Petit Larceny as Second Offense.
    One charged with petit larceny as a second offense has a right to be tried for a misdemeanor rather than for a felony and to imprisonment in a penitentiary rather than in a State’s prison, for a conviction for a felony is more serious than for a misdemeanor, as it involves the loss of political rights, etc.
    Williams, J., and McLennan, P. J., dissented, with opinion.
    Appeal by the People of the State of Hew York, through the district attorney of Monroe county, from an order, made by a justice of the Supreme Court and entered in the office of the clerk of the county of Monroe on the 4th day of November, 1908, sustaining a writ of habeas corpus and discharging the relator from the custody of the sheriff of said county.
    The opinion delivered by the justice who granted the order appealed from is reported in People ex rel. Cosgriff v. Craig, 60 Misc. Rep. 529.
    
      Howard H. Widener, District Attorney, and Charles B. Bechtold, Assistant District Attorney, for the appellant.
    
      George S. Van Schaick, for the relator, respondent.
   Kruse, J.:

The police justice, of the city of Rochester held the relator upon the charge of petit larceny, committed in that city and charged as a second offense. Instead of trying him the police justice committed him to the custody of the sheriff of Monroe county to await the action of the grand jury.

The learned justice before whom the relator was brought on a writ of habeas corpus held that the offense of petit larceny, although charged as a second offense, was a misdemeanor, and that since the charter of the city conferred upon the Police Court exclusive jurisdiction in the first instance to try and determine all offenses of which Courts of Special Sessions have exclusive jurisdiction, when such offenses are committed within the city, and as the Police Court “ also has exclusive jurisdiction in the first instance to try for any other misdemeanor committed in the city, any person who is brought before said court charged with such offense ” (Charter of the city of Rochester [Laws of 1907, chap. 755], § 468), the duty devolved upon that court to try the accused upon such charge.

The learned district attorney challenges the correctness of the holding that petit larceny charged as a second offense is a. misdemeanor. Some criminal offenses are specifically designated as felonies and some as misdemeanors; others are classified generally. Under the general classification, felonies are such crimes as are or may be punishable by either death or imprisonment in a State prison; any other is a misdemeanor. Penal Code, §§ 4, 5, 6. Where the punishment inflicted is imprisonment for a term of less than a year, the imprisonment must be in the county jail, except when otherwise specially prescribed by statute. Penal Code, § 702. Where the term of imprisonment is for a year, the imprisonment may be either in a county jail, a penitentiary or State prison; but no person shall be sentenced to imprisonment in a State prison for less than a year. Penal Code, § 703. Where the imprisonment is for a term exceeding one year, the confinement must be in a State prison (Penal Code, § 704); but it is expressly provided 'in the last section that such section and sections 702 and 703 shall not apply to a case where special provision is made by statute as to the punishment for any particular offense or class of offenses or offenders, and specifically excepts certain classes, such as minors, female convicts and others which need not be here named. A felony for which no other punishment is specially prescribed is punishable by imprisonment for not more than seven years, or by a fine of not more than $1,000, or by both. A misdemeanor for which no other punishment is specially prescribed is punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both. Penal Code, §§ 14, 15.

The felonies and misdemeanors referred to in sections 14 and 15 must necessarily be such as are specifically so designated and declared. Every larceny not grand larceny in the first or second degree is petit larceny (Penal Code, § 532), and petit larceny is expressly declared to be a misdemeanor. Penal Code, § 535. In the absence of any special provision, it is, therefore, punishable by imprisonment in the county jail or penitentiary for a term not exceeding one year, or by a fine not exceeding $500, or by both.

Section 688 of the Penal Oode, however, provides that a person who, after having been convicted in this State of a felony, or an attempt to commit a felony, or of petit larceny, or, under the laws of any other State, government or country, of a crime which, if committed within this State, would be a felony, commits any crime within this State, is punishable upon conviction of such second offense by imprisonment for life in a State prison, if the subsequent crime is such that upon a first conviction the offender might be punished by imprisonment for that time. As regards other offenses punishable by imprisonment upon first conviction for any term less than that, the person must be sentenced for not less than the longest term nor more than twice the longest term prescribed upon the first conviction.

So that a person convicted of petit larceny charged as a second offense may be imprisoned for a term of two years. It is, therefore, argued by the district attorney that such an offense is a felony. That would seem to follow were it not for the express provision of the Penal Code declaring petit larceny to be a misdemeanor, and other provisions contained in that Code to which attention will be presently called.

As has been seen the general classification of crimes as felonies and misdemeanors according to the place of imprisonment, does not apply to a crime which is specifically declared to be a felony or a misdemeanor, and so can have no application to petit larceny. The mere fact that petit larceny charged as a second offense is punishable more severely than the first offense does not, as it seems to me, change the character of the crime so as to make it a felony, in the face of the declaration of the Penal Oode declaring every larceny not grand larceny in the first or second degree petit larceny and a misdemeanor.

It is true that under the Revised Statutes (2 R. S. 699, § 9; Id. 102, § 30) petit larceny charged as a second offense Was a felony, but that was because it was expressly made a felony and punishable by imprisonment in a State prison, and a like provision was contained in the original draft of the Penal Code submitted in 1864. Section 688 of the Penal Code, as finally enacted by the Legislature, contains in substance section 750 of the Penal Code as reported by the commissioners, except that subdivision 3 of the original draft, which provided that a subsequent conviction for petit larceny should be punishable in a State prison for a term not exceeding five years, is omitted, and the provisions of the Revised Statutes in that regard were repealed by the Penal Code and not re-enacted therein. See Laws of 1881, chap. 676, §§ 688, 726, 727, as amd. by Laws of 1882, chap. 102. See, also, Laws of 1886, chap. 593, § 1, subd. 4, par. 1; Id., §§ 2-4. In thus amending the statute and expressly declaring all larceny not. grand larceny misdemeanors, the legislative intent seems reasonably clear to make the crime of petit, larceny, although charged as a second offense, a misdemeanor.

Assuming that petit larceny charged as a second offense, if a misdemeanor, is not punishable by imprisonment in a State prison, as seems to be contended by the district attorney and conceded by the attorney for the relator, it does not follow that the provision of section 688 of the Penal Code, imposing a double penalty for a second offense will become ineffective in a case like this. Section 3 of chapter 574 of the Laws of 1869 (as amd. by Laws of 1892, chap. 587, and Laws of 1893, chap. 114) provides that if the offense is punishable with imprisonment in a State prison for a term of five years or less the imprisonment may be in the penitentiary in the discretion of the court in certain of the judicial departments of this State, including this department, and in this case to the Monroe County Penitentiary (Charter of city of Rochester, § 477).

The Police Court seems to have full power to impose the adequate punishment. Charter of the city of Rochester, § ■476. The limitation upon the power of that court to impose imprisonment not exceeding a year for a misdemeanor is subject to the qualification except where a different punishment is by law prescribed for such offense.” And besides the matter may be removed before the grand jury, as provided by sections 57 and 58 of the Code of Criminal Procedure. Charter of the city of Rochester, § 473. There may be little if any difference in punishment whether the imprisonment is in a State prison or in the penitentiary; but the consequences following a conviction of felony are much more serious than a conviction for a misdemeanor, such, for instance, as the loss of political rights. If petit larceny charged as a second offense is a felony, then every misdemeanor punishable by imprisonment- for a year, even if expressly declared to be a misdemeanor, committed after a conviction for petit larceny, becomes a felony, .since the punishment may then be double, and that will include -offenses against mere police regulations such as unlicensed ped-dling (Penal Code, § 384e) and many others which need not be named.

We think the order should be affirmed.

All concurred, except McLennan, P. J., and Williams, J., who dissented in an opinion by Williams, J.

Williams, J. (dissenting):

The order should be reversed and the writ dismissed and the relator remitted to the custody of the sheriff.

The relator was charged with petit larceny as a second offense. The Police Court of the city of Rochester held that it had no jurisdiction to try a person for that offense and committed relator to await the action of the grand jury. The -order appealed from was based upon the proposition that the Police Court had the exclusive jurisdiction to try relator for the offense charged and had no right to commit him to await the action of the grand jury. This we regard as erroneous. Petit larceny is denominated a misdemeanor by section 535 of the Penal Code and is punishable as such by imprisonment in a penitentiary or county jail for not more than one year or by .a fine of not to exceed $500, or by both. Penal Code, § 15. Petit larceny as a second offense is punishable by imprisonment for not less than one year nor more than two years. Penal Code, § 688. Where the imprisonment for a crime is for a term of more than one year it must be inflicted by confinement at hard labor in a State prison except where special provision is made by statute as to the punishment for any particular offense or class of offenses or offenders, and except as to females and minors who may be sent to specified institutions, persons between sixteen and thirty who may be sent to the Elmira Reformatory; children under twelve years of age who may be •sent to the House of Refuge, State Industrial School or Hew York Training School for Girls. Penal Code, § 704.

A felony is a crime which may be punishable by death or imprisonment in a State prison. Penal Code, § 5. Any other crime is a misdemeanor. Penal Code, § 6. Under these definitions petit larceny, second offense, is a felony. It is not denominated a misdemeanor anywhere in the Penal Code. Crimes not cognizable by Courts of Special Sessions or Police Courts must be prosecuted by indictment. Code Crim. Proc., § 4. Courts of Special Sessions throughout the State have exclusive jurisdiction of petit larceny charged as a first offense, but not charged as a second offense. Code Crim. Proc., § 56. Police Courts have only such jurisdiction as is specially conferred upon them by statute. Code Crim. Proc., § 74. The Police Court of the city of Rochester has exclusive jurisdiction of all crimes of which Courts of Special Sessions have cognisance under section 56 of the Code of Criminal Procedure, and ¡also of any other misdemeanor (Charter of Rochester [Laws of 1907, chap. 755], § 468), and has power to impose a sentence of imprisonment not exceeding one year and a fine not exceeding $500 upon conviction for a misdemeanor, except where a different punishment is by law prescribed for such offense. Section 476.

It seems to us apparent that under these provisions of the charter the Police Court has no jurisdiction to try or sentence a person for the crime of petit larceny as a second offense. It is claimed the court has such jurisdiction because it is given jurisdiction of any misdemeanor, but this crime is not a misdemeanor. It is a felony, as we have seen, by the express definition of felony and misdemeanor given in the Penal Code, and we think the Legislature had this definition in contemplation in the provision giving this court jurisdiction of any misdemeanor. It is said that petit larceny, whether charged as a first or second offense, is the same crime denominated in the Penal Code a misdemeanor, and that the difference in the crime, whether alleged as a first or a second offense, affects the punishment alone, and does not change the nature of the offense as a misdemeanor. It seems to us that this is a forced and unnatural construction of the provision of the charter referred to. The power is only given this court to impose a sentence of imprisonment not exceeding one year for a misdemeanor, except where a different punishment is by law prescribed for such offense, and it seems to be claimed that under this exception this court can impose a sentence for two years.

We cannot believe the Legislature intended to give this court any such power. We do not understand the court is given power to impose a sentence for any term of confinement in a State prison. It could only sentence to a penitentiary in any event, and if this be so, then there Would be one place of imprisonment for the crime in the city of Rochester, and another in the counties throughout the State, because in the latter counties the confinement would have to be in a State prison. We see no occasion for the construction of the charter of Rochester contended for, and made the basis of the order appealed from. It has heretofore been supposed persons charged with this crime had to be prosecuted :by indictment in the higher courts. This procedure has been adopted in Rochester.

This is a new departure, and we think an unfortunate one. It requires parties to be tried without indictment for a crime for which the punishment is, or may be, confinement in a State" prison for two years, and this should not be so.

We think the order appealed from is erroneous and should be reversed.

McLennan, P. J., concurred.

Order affirmed.  