162 N.E. 87 | NY | 1928
On March 28, 1927, the defendants were convicted in the County Court of Queens county of the crime of robbery, committed February 25, 1927, and were sentenced to imprisonment for a term of years.
On June 14, 1927, they were convicted in the Court of General Sessions in New York county, upon their plea of guilty, of the crime of manslaughter in the first degree, committed February 6, 1927, and were sentenced to imprisonment for not less than ten nor more than twenty years, this sentence "to commence at the expiration of the sentence to State prison pronounced in Queens County Court by Judge ADEL on March 28, 1927."
The question is whether there was power to make the second sentence cumulative rather than concurrent.
By Penal Law (§ 2190), "Where a person is convicted of two or more offenses, before sentence has been pronounced upon him for either offense, the imprisonment, to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first or other prior term or terms of imprisonment, to which he is sentenced."
By the same section, "Where a person, under sentence for a felony, afterwards commits any other felony, and is thereof convicted and sentenced to another term of imprisonment, the latter term shall not begin until the expiration of all the terms of imprisonment, to which he is already sentenced."
Neither of these provisions controls the case at hand — not the first, for sentence had already been imposed for one of the offenses before conviction of the other; not the second, for the felony that is the subject of the later sentence was committed before the felony that is the subject of the earlier one.
We think the discretionary power of the court to *305 impose a cumulative sentence in cases not covered by the mandatory statute remains, undiminished, as it was at common law.
The statute prescribes an automatic rule in certain typical situations that seemed to call for special treatment. Almost invariably a prisoner brought up to be sentenced at the same time for two or more offenses is one who has been tried for the two offenses at the same term of court and before the same judge (People ex rel. Tweed v. Liscomb,
We find no token of a purpose to curtail discretionary power in situations left uncovered. Cases have often *306
arisen and must often arise hereafter where a felon about to be sentenced in one court has been sentenced for another felony in the same court or another (Rigor v. State,
The argument is made that Penal Law section 22 excludes the exercise of common-law power, if it would *307
otherwise exist. "No act or omission begun after the beginning of the day on which this chapter takes effect as a law, shall be deemed criminal or punishable, except as prescribed or authorized by this chapter, or by some statute of this state not repealed by it" (Penal Law, § 22). The effect of that provision is merely to abolish common-law crimes and common-law punishments. The definition of the crime and the extent of the punishment must be sought for in the statute. This is made clear by Penal Law section 20 which provides: "This chapter [i.e. the Penal Law] specifies the classes of persons who are deemed capable of crimes, and liable to punishment therefor; defines the nature of the various crimes; and prescribes the kind and measure of punishment to be inflicted for each." It is one thing to say that the kind and measure of the punishment to be inflicted shall be governed by the statute. It is another thing to say that there shall be a rejection of common-law tests in determining the form of sentence whereby the mandate of the statute may best be put into effect. If Penal Law section 2190 had never been enacted, the question would remain, When the statute imposes the punishment of imprisonment for each of two crimes, are the terms of imprisonment to be successive or concurrent? The statute answers that question in some situations, and omits to answer it in others. The courts must fill the gap. A grant of power to sentence for a stated term without other limitation is to be read as a like grant of power would be read at common law (cf. Peopleex rel. Forsyth v. Court of Sessions,
Our holding that section 2190, Penal Law, does not affect the form of sentence in fields uncovered by its mandate, has support in carefully considered judgments in other jurisdictions. Such was the ruling of the Supreme Court of Missouri under a statute substantially the same as ours (People ex rel. Meininger v.Breuer,
The defendants were lawfully sentenced, and the judgment should be affirmed.
POUND, CRANE, ANDREWS and O'BRIEN, JJ., concur; LEHMAN and KELLOGG, JJ., not sitting.
Judgment affirmed.