
    SUPREME COURT — APP. DIVISION — FIRST DEPARTMENT.
    Jan. 3, 1913.
    THE PEOPLE EX REL. PHILIP RODENBERG v. THE WARDEN OF THE PENITENTIARY.
    (154 App. Div. 473.)
    (1.) Receiving stolen goods  — Conviction in Court of General Sessions — Imprisonment in penitentiary of County of New York— Repeal of statute — N. Y. Consolidation Act, Sec. 1453 — Penal. Law, Sec. 1308.
    Section 1453 of the New York City Consolidation Act, which provides that a person convicted in any criminal court in the city of New York for buying or receiving personal property feloniously stolen from another knowing the same, to have been stolen may be; sentenced “ to imprisonment in the penitentiary of the said city for the same term of time for which such person may by law be sentenced to imprisonment in a State prison,” is not inconsistent with and was not repealed by the Penal Code, and a defendant convicted of such crime in the Court of General Sessions may be sentenced to imprisonment in the penitentiary of the county of New York for the term of one year under the above section of the Consolidation Act and under section 1308 of the Penal Law which provides that a person convicted of such crime “is punishable (1) by imprisonment in a State prison for not more than five years, or (2) in a county jail for not more than sis months or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment.”
    Appeal by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of December 1911, sustaining a writ of habeas corpus and discharging the relator from custody.
    
      Robert S. Johnstone, for the appellant.
    
      
      Louis Levy, for the respondent.
    
      
       See Notes 12-48; 24r-49.
    
   Scott, J.:

The relator was convicted in the Court of General Sessions of the crime of criminally receiving stolen goods, and was sentenced to imprisonment in the penitentiary of the county of New York for the term of one year.

At the expiration of six months’ imprisonment he sued out a writ of habeas corpus claiming that he could not legally be sentenced to the penitentiary for the offense whereof he had been convicted for more than six months; that as to the excess of imprisonment over that term his sentence was void, and that having served six months he was entitled to be discharged. The court at Special Term acceded to this view and discharged him.

The crime whereof the relator was convicted is defined by section 1308 of the Penal Law. The definition is not important here, but the provisions as to the punishment are. It is provided that a person convicted of the crime “ is punishable [1] by imprisonment in a State prison for not more than five years, or [2] in a county jail for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment.”

There were thus two distinct punishments prescribed, either of which might be imposed by the court. It is quite clear that, in the case of this relator, the court did not undertake to impose the milder sentence of six months’ imprisonment in the county jail. The sentence, if it can be upheld at all in its entirety, must be upheld under the authority to impose a sentence of imprisonment in a State prison. The validity of relator’s sentence is sought to be sustained under the provisions of section 1453 of the New York City Consolidation Act (Laws of 1882, chap. 410), which unless repealed by implication by the enactment of the Penal Code, remains in force. It reads as follows: “ Whenever a conviction shall be had in any criminal' court in the city of New York, of any person for buying or receiving any personal property feloniously stolen from another, knowing the same to have been stolen, such person may be sentenced, in the discretion of the court, to imprisonment in the penitentiary of the said city for the same term of time for which such person may by law be sentenced to imprisonment in a State prison.”

The learned justice who made the order appealed from was of the opinion (75 Misc. Rep. 77) that the above-quoted section of the Consolidation Act had been repealed by the Penal Code, .relying as an authority for that conclusion upon People v. Jaehne (103 N. Y. 182; 4 N. Y. Crim. 478). That case involved the question whether section 58 of the Consolidation Act, defining the crime of bribery of a member of the common council or an officer of the corporation of the city of New York and fixing a punishment of not more than two years in the penitentiary for the specific offense defined by that section, was superseded and impliedly repealed by section 72 of the Penal Code, which defined the crime of bribery and embraced within its provisions the officers mentioned in, and hence the offense defined in section 58 of the Consolidation Act and prescribed a maximum punishment of ten years in the State prison. Precisely what the court held was that the Penal Code superseded the Consolidation Act “ wherever the two statutes are in conflict ” and that any .penal provision of the Consolidation Act “ in conflict with the Penal Code ” was so superseded. (P. 189.) The Court of Appeals was led to the adoption of this view by a consideration of the reasons which led to the adoption of the Penal Code. As Judge Andrews said: “ The Penal Code, as its title implies, is an institute of criminal justice of general application, and was enacted in harmony with the tendency of recent legislation for the purpose of embodying in a single statute the system of criminal law applicable to the State, and substituting the statute so enacted in place of the great number of statutes and amendments of statutes which together, before the enactment of the Code, constituted the body of the criminal law. ® * * It is a plain inference from these provisions that the Penal Code was intended as a revision of the prior laws in respect to crimes and their punishment and as a substitute for the scattered and fragmentary legislation which preceded it. The Penal Code contains no general clause repealing prior statutes covering the subjects embraced in its provisions. It, however, defines and prescribes the punishment for murder, larceny, burglary and all the generally recognized offenses, and it cannot be doubted that its provisions on these subjects were intended as a substitute for similar provisions in the prior laws.” (Pp. 192, 193.) That decision is ample and unquestioned authority for the proposition that in so far as concerns the definition of crimes and their punishment the Penal Code repealed, by implication, all prior special statutes inconsistent with it.

In the Jaelme case the Court of Appeals, for the reasons stated, departed from the general rule that a special statute providing for a particular case or applicable to a particular locality is not repealed by a general statute. The exception to the rule is where the intent to repeal or alter the special law is manifest, as the court found that it Was with respect to the definition of and the punishment for the crime of bribing a public officer. We can see no reason for pushing the doctrine of the Jaehne case any further than is justified by the reasons given for its decision. The arguments in favor of finding an implied repeal of section 58 of the Consolidation Act by section 72 of the Penal Code are unanswerable, but they have no application to the case of a local and special provision of the Consolidation Act respecting the place in which the punishment of imprisonment shall be endured. The essential features of the Penal Code respecting crime are to afford a definition and to prescribe the extent of the punishment to be inflicted. In these particulars it is most desirable that a uniform law should extend over the entire State. No such reason demands that all sentences to imprisonment should be carried out in similar institutions, for in the nature of things it will not be convenient, nor does any law require that precisely similar institutions shall be maintained in every county. The uses to which county jails are to be put under section 90 of the County Law (Consol. Laws, chap. 11; Laws of 1909, chap. 16) are (1) for the detention of persons duly committed to secure their attendance as witnesses in any criminal case; (2) for the detention of persons charged with crime, and committed for trial or examination; (3) for the confinement of persons duly committed for any contempt or upon civil process; (4) for the confinement of persons convicted of any offense other than a felony and sentenced to imprisonment therein or awaiting transportation under sentence to imprisonment in another county. In the city of New York there is no one prison fulfilling all these requirements, and for the very sufficient reason that owing to the great size of the city, and the consequently large number of persons who have to be incarcerated from time to time, it would be impracticable to provide a county jail such as can be and is maintained in less populous counties. This fact furnishes an amply sufficient reason for the enactment of a special law for the city of New York that a person convicted of receiving stolen goods in that city may be sentenced to the penitentiary instead of a State prison, and there is no reason, resting upon the supposed desirability of uniform legislation, which requires that, as to this detail of local administration the special law should be deemed to have been impliedly repealed by the general law. Indeed, the framers of the Penal Code seem to have had in mind the «preservation of the provisions of local and special statutes for the punishment of certain classes of offenders.

Thus, section 704 of that act (now section 2183 of the Penal Law) provided as follows: “ Where a person is convicted of a crime, for which the punishment inflicted is imprisonment for a term exceeding one year, or is sentenced to imprisonment for such a term, the imprisonment must be inflicted by confinement at hard labor in a State prison. But this and the two last sections shall not apply to a case where special provision is made by statute as to the punishment for any particular offense or class of offences or offenders, nor to the cases specified in sections six hundred and ninety-eight, six hundred and ninety-nine, seven hundred, and seven hundred and one.”

The fundamental error of the relator’s position lies in assuming that the penitentiary in the county of New York is the county jail of that county in the sense that the words “ county jail” are used in the Penal Law. For certain purposes it is used as a county jail is used in other counties, but it is something more. Penitentiaries are recognized by law as institutions quite distinct from county jails (See Prison Law [Consol. Laws, chap. 43; Laws of 1909, chap. 47], art. 12), and in many sections of the Penal Law county jails and penitentiaries are unmistakably referred to as separate and distinct institutions. Thus, in section 2182, referring to sentences generally, it is provided that “ Where a person is convicted of a crime, for which the punishment inflicted is imprisonment for a term of one year, he may be sentenced to, and the imprisonment may be inflicted by, confinement either in a county jail, or in a penitentiary or State prison. No person shall be sentenced to imprisonment in a State prison for less than one year.”

It would seem to have been the purpose of the Legislature to establish penitentiaries as part of the State’s , system of prisons and as subsidiary or substitutional State prisons to relieve the latter from the care of short-term convicts. Hence the provision of section 2182 of the Penal Law that no person may he sentenced to imprisonment in a State prison for less than a year.

Our conclusion is that the section of the Consolidation Act quoted above, being a mere local regulation as to the place where the imprisonment is to be inflicted, rendered necessary sistent with and, therefore, was not repealed by the Penal by the peculiar conditions existing in a great city, is not inconCcde, but on the contrary is in entire harmony with the general scheme of the Penal Code and its successor, the Penal Law, which contemplated the incarceration of long-term offenders in State prisons, shorter-term offenders convicted of serious crimes in penitentiaries, and of minor offenders sentenced for a term of a few months in county jails, where such institutions exist, or in penitentiaries. It follows that the relator’s sentence as imposed was lawful and valid.

The order appealed from must, therefore, be reversed, the writ of habeas corpus dismissed and the relator remanded to serve out the unexpired term of his sentence.

Igraham, P. J., McLaughlin, Clark and Dowling, JJ-, concurred.

Order reversed, writ dismissed and relator remanded. Order to be settled on notice.  