
    SUPREME COURT.
    The People of the State of New York, respondents, agt. Michael McTameney, appellant.
    
      Criminal law — Prisoner indicted for grand larceny may be conmeted of petit larceny — Prisoner may be sentenced to imprisonment for one yean' for petit larceny — Penal Code, sections 7, 15, 528, 580, 531, 532, 535, 719, 726, 651 — Code of Criminal Procedure, sections 56, 444, 445.
    Where a prisoner has been indicted for grand larceny, and is on trial before a jury in the court of oyer and terminer, or of the sessions, ' they have the power to find a verdict of petit larceny.
    Petit larceny is a misdemeanor, and is punishable under section 15 of the Penal Code by imprisonment in the penitentiary or a county jail for not more than one year, or by a fine of not more than $500, or both.
    
      Third Department, Generad Term, September, 1883.
    
      Before Learned, P. J., Boardman and Bookes, JJ.
    
    An appeal from the judgment of the Ulster sessions, sen. tencing the appellant to imprisonment at hard labor in the Albany penitentiary for the term of one year upon conviction of petit larceny by 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 at the same term and convicted of petit larceny. His counsel moved for his. discharge upon the ground that the court had no jurisdiction to pronounce sentence. The motion was denied, and the defendant was sentenced to imprisonment at hard labor in the Albany penitentiary for one year.
    
      William Lounsbery, for appellant.
    1st. The jury had no jurisdiction or power to convict, nor the court to sentence ■ the defendant for petit larceny (Code of Crim. Pro. sec. 56; Comaford agt. Butcher, 83 N. Y., 240; The People agt. Rawson, 61 Barb., 619; Divine agt. The People, 20 Hun, 28; 1 Chitty, 939 ; Wallbeer's Case, 1 Leach, 14; 2 Strange, 1133 ; Dedieu agt. The People, 22 N. Y., 183; The People agt. Jackson, 3 Hill, 92). At common law on an indictment for felony there could, be no conviction for misdemeanor. This rule of the common law covered all cases and was adopted by our courts (The People agt. Jackson, 3 Hill, 92; Palmer agt. The People, 5 Hill., 421; Klein agt. The People, 31 N. Y., 229). 2d. The court had no power to pass the sentence which was imposed. Neither the Criminal nor Penal Code prescribe any punishment for petit larceny. 3 Revised Statute (Banks' 6th ed.), 969, section 1, makes the punishment imprisonment in a county jail not exceeding six months, or a fine not exceeding $100, or both. This section was not repealed by the Code. Section 15, Penal Code only amends and repeals section 103 of 3 Revised Statute (Banks’ 6th ed.), 983. In this case the sentence was imprisonment at hard labor for one year in the penitentiary.
    
      A. T. Clearwater, district attorney of Ulster county, for the People.
    The conviction of petit larceny was proper. "Chapter 4 of the Penal Code defines larceny, and divides the crime into three degrees: Section 528 defines larceny ; section 530 defines the first degree of larceny; section 531 defines the second degree of larceny; section 532 thus defines the third degree of larceny: “ Every other larceny is petit larceny.” Section 444 of the Code of Criminal Procedure provides that, “upon an indictment for a-crime, consisting of different degrees, the jury may find the defendant not gulity of the degree charged in the indictment "and guilty of any degree inferior thereto, or of an attempt to commit the crime.” Section 445 provides that “ 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.” Section 35 of the Penal Code provides that “ upon the trial of an indictment the prisoner may be con-' victed of the crime charged therein, dr of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime.” The last three sections' cited are substantially enlarged re-enactments of the provisions of the Eevised Statutes relative to the same matter (3 R. S. [6th ed.], 995, sec. 48; 2 R. S. [Edm. ed.] 735, sec. 27), and seem to. cover, as they doubtless were intended to do, every possible phase of the question. Section 36 of the Penal Code substantially so states: “ "Where a prisoner is acquitted or convicted upon an indictment-, of a crime consisting of different degrees, he cannot thereafter be indicted or tried for the same crime in any other degree, nor for an attempt to commit the crime so charged, or any degree thereof.” Even at common law the prisoner may be convicted of a lesser degree of a crime than that charged in the indictment, where the act itself is of the same nature as the one charged, and the means of committing it not materially different, even where the indictment does not allege the particular intent and circumstances characterizing the lesser degree (Keefe agt. The People, 40 N. Y., 348). A case in which judge Gkover’s opinion states with great clearness the reason of the rule (See, also, The People agt. Jackson, 3 Hill, 92; Palmer agt. The People, 5 Hill, 427). The indictment at bar, however, charged petit as well as grand larceny. Section 56 of the Code of Criminal Procedure is substantially a re-enactment of chapter 390 of the Laws of 1879. In Ryan agt. The People (decided at the November, 1879, term of this court- and reported in 19 Hun, 188; affirmed by the court of appeals in 1880 and reported in 79 N. Y., 593), in which a question upon the statute (chap. 390 of the Laws of 1879) was raised, it was said by the court of appeals that “ charges,” as used in that statute (and therefore in the Code of Criminal Procedure embodying the provisions of that statute), “ implies an original complaint made in the first instance, preliminary to a formal trial for a crime ” (See opinion, p. 596). 2d. The sentence pronounced was proper. Petit larceny is a misdemeanor (Penal Code, sec. 535). An offense specified in the Code, committed after it took effect, must be punished as in the Code prescribed (Penal Code, sec. 719; Id., sec. 7). All inconsistent acts imposing punishment are repealed (Penal Code, sec. 726). A person convicted of a misdemeanor is punishable by imprisonment in a penitentiary or a county jail for not more than one year, or by a fine of not more than $500, or by both (Penal Code, sec. 15).
   Learned, P. J.

— The Penal Code (see. 528) 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 of which he was indicted; and we do not think that section 56 of that 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 twenty-five dollars, 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 Eevised Statute (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, &c., 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 specially prescribed by the Code or by some other statutory provision. Eo other punishment is specially prescribed by the Code for petit larceny, and none by any other statute unless 2 Eevised Statute (to. 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 Eevised 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 putiislnnent remains in force.

Eow, if we turn to 2 Eebised Statutes (to. 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 Revised Statutes, m.f>. 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 (eh. 109, secs. 1 and 2), by which the crime was declared and a penalty prescribed of six months imprison-ment 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 ? Tinder such a construction the Penal Code would cease to be a complete system, as it was intended to be (See. 7).

The judgment and conviction should be affirmed.

All concur.

Judgment and conviction affirmed.  