The defendant Jardine pleaded guilty to the offense of accessory before the fact to the offensе of manslaughter in the first degree which consists of killing a person *201 without intending to effect death while committing a misdemeanor under circumstances such as to constitute murder at common law. Secs. 340.10 and 353.05, Wis. Stats. The killing to which the defendant was accessory is that for which Fred W. Blankenship, whose case is decided herewith, ante, p. 195, 7 N. W. (2d) 424, was sentenced аs principal. The misdemeanor Blankenship was committing was recklessly driving an automobile on the highway. Jardine was in thе automobile with Blankenship. Upon arraignment the information which did not allege a prior conviction was read to the defendant and He pleaded guilty. The trial judge then asked the district attorney if he wished to say something, and .the distriсt attorney informed the court that the defendant had been previously convicted of petty larceny in the state of New York and placed on probation for three years and that the probation was subsequently reyоked and the defendant placed in the New York City reformatory and released therefrom on March 4, 1941. It was conceded that the New York City reformatory is operated by the city of New York. The court asked defendant’s attоrney if he .questioned whether the defendant had been sentenced to a state reformatory and the attorney stated that the New York City reformatory is not a “state reformatory.” A telegram from New York attorneys was then reсeived in evidence by stipulation stating in reference to the prior conviction: “No specific statute оr ordinance. New York City institution. Misdemeanants only. Ages sixteen to thirty. Generally young first offenders. Discretionary with local courts as to place of detention.” The defendant’s attorney then informed the court that the defendant was еighteen years of age at the time of his prior conviction. Thereupon the court sentenced the defendant under the repeater statute to imprisonment in the state’s prison for not less than five or more than fifteen years. The penalty for the offense of accessory before the fact is the same as for the prin *202 cipal offense and the maximum for the principal offense involved is ten years in the state’s prison. Secs. 353.05, 340.13, and 340.10, Wis. Stats.
Here, as in the Blankenship Case, suрra, the only question involved is whether the application of the repeater statute, sec. 359.12, Wis. Stats., was erroneous.
Defendant’s counsel contends that as the New York City reformatory, to a branch of which the defendant was sentenced, is a New York City institution, it therefore cannot be a state reformatory. We held in
State v. Clementi,
However, in the Blankenship Case, supra, we hold that to render the repeater statute applicаble, under which five years of imprisonment in the state’s prison in addition to the maximum permissible under the manslaughter in the first degrеe statute was imposed upon the defendant, the institution to which the defendant was sentenced upon his prior conviction must have been of the same general class as our own state reformatory. The New York criminal courts located in the city of New York sentence to the New York City reformatory male persons between the ages of eighteen and thirty years convicted for the first time of offenses “other than felonies.” The maximum term of imprisonment is three years. Gilbert’s Anno. Criminal Code & Penal Law, p. 694-a. Petit larceny, *203 defined as any larceny less than grand of first and second degree, of whiсh the defendant was convicted when sent to the New York City reformatory, is a misdemeanor. Id. secs. 1299, 1295, 1296, 1297. We consider that a reformatory commitment to which only misdemeanants are committed until paroled and not to exceed three years, is not of the same general class as our state reformatory, to which persons between sixteen and twenty-five convicted of any felony but murder in the first degree may be committed. Sec. 54.02, Wis. Stats. It is true that misdemeanants punishable by imprisonment in a county jail or house of correction for a year or more may also be сommitted to the state reformatory, and that persons committed to the reformatory of the city of New York mаy be held in prison for three years, as above stated. But the conviction to the city reformatory is until parolеd, not exceeding three years, while persons of the age stated' convicted of rape, the sentenсe for which may be thirty years, may be sentenced to the Wisconsin state reformatory. Sec. 340.46, Wis. Stats.
It follows that the judgment appealed from should be reversed, with directions to the court to vacate it and resentence the defendant and limit the penalty as prescribed by the statutes for manslaughter in the first degree.
By the Court. — The sentence of the circuit court is reversed, and the cause remanded with direction to vacate the sentence and resentence the defendant and limit the penalty as prescribed by the statutes for manslaughter in the first degree. The warden of the state’s prison is directed to surrender the defendant to the sheriff of Marathon county to be held and taken before the court for resentence.