65 How. Pr. 401 | N.Y. Sup. Ct. | 1883
In examining the question presented we must consider that the Penal Code is a general statute intended to define all (or nearly all) crimes and to provide for their punishment (Secs. 2, 7 and 11). There must he special offenses which are not touched by it. But in respect to well lmown.
The Penal Code {sec. 535) declares that petit larceny is a misdemeanor. This must mean petit larceny as previously therein defined. Section 719 declares that an offense specified in this Code, committed after, &c., must be punished according to the provisions of this Code and not otherwise. Section 15 declares that a person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail for not more than one year or by a fine of $500, or by both. Petit larceny is. a misdemeanor. Ro other punishment is specially prescribed by the Code. The prisoner’s crime was committed after the Code took effect, and is punishable according to its provisions.
The question is whether there is any other punishment specially prescribed by any statutory provision now in force. Section 726 of the Penal Code declares all acts inconsistent to be repealed so far as they impose any punishment for crime. And it is an obvious meaning of that section that punishments imposed by previous acts are to be repealed whenever they are inconsistent with the Code. The penalty imposed by 2 Revised Statutes, m. p. 690, section 1, is certainly inconsistent with that imposed by the Penal Code. It cannot be understood that the exception in section 15 was to take away the effect of section 726.
The argument of the relator is that whenever a punishment had been prescribed for a misdemeanor previously to the Penal
The relator is remanded to the superintendent of the penitentiary to be held under the warrant -and mittimus.