
    PEOPLE v. McTAMENEY.
    
      N. Y. Supreme Court, Fourth District, Third Department ; General Term ;
    
      September, 1883.
    Indictment fob Larceny.—Code of Grim. Pao. §§ 444, 445.—Penar Code.—Statutory Construction. —Petit Larceny.—Sentence therefor.
    Under the peculiar provisions of the Code Grim. Pro. §§ 444 and 445, a person indicted for grand larceny may be convicted of petit larceny.
    
      The Penal Oode is a general statute intended to define nearly all offenses, and to prescribe the punishments therefor. In case of a petit larceny committed after the day when the Penal Oode took effect, such offense, being specified in the Penal Code, must be punished according to the provisions thereof, and not according to 2 R. S. 697, § 40.
    Sections 528, 580, 581 and 533 of the Penal Code, referred to, and sections 535, 719, 72G, 7 and 15 thereof, commented on and construed, and sections 56, 444 and 445, Code of Criminal Procedure, expounded and enforced.
    Appeal by Michael McTameney from the judgment of the Ulster Sessions sentencing him to imprisonment at hard labor in the Albany penitentiary for the term of one year, upon conviction of petit larceny by the verdict of a jury.
    The defendant was indicted at the Ulster Sessions in June, 1883, for grand larceny in the first degree. He was tried and convicted of petit larceny. His counsel moved his discharge upon the grounds that the court had no jurisdiction to pronounce sentence. This motion was denied and the appellant sentenced, when fie appealed to the general term of the Supreme Court.
    
      William Lounsbery, for appellant.
    I. The jury had no jurisdiction to convict, nor the court to sentence the defendant for petit larceny (Code Crim. Pro. § 56 ; People ex rel. Comaford v. Dutcher, 83 N. Y. 240 ; People v. Rawson, 61 Barb. 619 ; Devine v. People, 20 Hun, 98 ; 1 Chitty, 939; Westbeer’s case, 1 Leach, 12, 14; 2 Strange, 1133; Dedieu v. People, 22 N. Y. 178, 183; People v. Jackson, 3 Hill, 92).
    II. At common law on indictment for felony, there could be no conviction for misdemeanor. This rule was adopted in New York (People v. Jackson, 3 Hill, 92 ; Palmer v. People, 5 Hill, 427; Klein v. People, 31 N. Y. 229).
    III. The court had no power to pass the sentence imposed. Neither the Criminal nor Penal Code prescribed any punishment for petit larceny; 3 R. S. (6th ed.) 969, § 1, makes the punishment, imprisonment in the county jail for six months, or a fíne of $100, or both-. The Penal Code only amends and repeals section 103 of 3 R. S. 983. In this case the sentence was imprisonment at hard labor for one year in the penitentiary.
    
      A. T. Olear-water, district attorney, for respondent.
    I. The conviction was proper; sections 528, 530, 531, 532, of the Penal Code, defined larceny and the degrees thereof; every other larceny is petit larceny ; sections 444 and 445 of the Code of Criminal Procedure provide for the conviction of a defendant of a degree less than that charged in the indictment (§§ 35, 36, Penal Code) ; section 56 of the Penal Code is a substantial re-enactment of Chapter 390 of the Laws of 1879 (Ryan v. People, 79 N. Y. 593).
    II. The sentence pronounced was proper. Petit larceny is a misdemeanor (Penal Oode, § 535); an offense specified in the Code committed after it took effect must be punished as in the Code prescribed (Penal Code, § 719 ; Id. §§ 7, 726, 15).
    
      
       These sections are as follows : § 444. ■“ Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the .crime.”
      “§445. In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.”
    
   Leabned, P. J.

The Penal Code, section 52S, defines larceny, sections 530 and 531 define grand larceny, in the first and second degrees, and section 532 declares every other larceny to be petit larceny.

The prisoner was indicted for grand larceny, and was convicted of petit larceny. We think that this was proper under sections 444 and 445, Code Criminal Procedure. The offense of which he was convicted was of a degree inferior to that for which he was indicted. And we do not think that section 56 of the same Code is to be construed to take from a jury in the courts of oyer and terminer and of the sessions the power to find a verdict of petit larceny when the prisoner has been indicted for grand larceny and is on trial before them for that crime.

If such construction were to be given to that section, and if such a jury should be obliged to acquit in case they were satisfied the stolen property was not of the value of more than $25, probably the prisoner could not thereafter be tried for such stealing.

The next question is as to the length of the sentence.

The sections of the Penal Code above cited are intended to take the place of 2 R. S. (m. p.), 679, section (63), and 690, section 1. Section 535 declares that petit larceny is a misdemeanor, meaning petit larceny as in that code defined. Section 719 declares that an offense specified in the code committed after, etc., must be punished according to the provisions of that code. Section 15 declares the punishment of misdemeanors to be imprisonment for not more than a year or a fine of $500, or both, unless some other punishment is spécially prescribed by the code or by some other statutory provision. No other punishment is specially prescribed by the code for petit larceny, and none by any other statute unless 2 R. S. (m. p.), 690, section 1, be in force.

The Penal Code is a general statute intended to define nearly all offenses, and to prescribe the punishment. Section 726 repeals all inconsistent acts so far as they impose any punishment for crime. The penalty imposed by the section of the Revised Statutes above cited is certainly inconsistent with that imposed ,by the code. It cannot be understood that the exception made in section 15 of the Penal Code was to take away the effect of section 726.

The argument of the prisoner is that whenever a punishment had been prescribed for a misdemeanor previously to the Penal Code, which was not in express and specific language repealed, that punishment remains in force.

Now if we turn to 2 R. S. (m. p.), 697, section 40, we find a provision for the punishment of all misdemeanors of -which the punishment is not prescribed by some other statute. Therefore, according to the argument of the prisoner, a punishment is especially prescribed for every misdemeanor. And therefore every misdemeanor is excepted from section 15 of the Penal Code. This is plainly unreasonable.

Again: The definitions of larceny in the Penal Code are not identical (in language) with those in the Revised Statutes. Therefore, that part of section 1, 2 R. S. (m. p.), 690, which defines petit larceny is not in force. Why, then, the residue of the section ?

The prisoner’s position, if correct, would apply apparently to other cases of misdemeanors. For instance, section 651 of the Penal Code declares certain interference with gas pipes to be a misdemeanor, but prescribes no penalty.

This section is substantially the act of 1854, ch. 109, sections 1 and 2, by which the crime was declared and a penalty prescribed of six months’ imprisonment and a fine of $250.

Are we to understand, then, that a violation of section 651 of the Penal Code is not punishable under section 15 of the same code, but that the penalty prescribed in the act of 1854 is in force %

Under such a construction the Penal Code would cease to be a complete system, as it was intended to be (section 7).

The judgment and conviction should be affirmed.

Boaedmae and Bocees, JJ., concurred.

Judgment and conviction affirmed.  