7 N.W.2d 426 | Wis. | 1942
Action by the state against David Jardine. From a sentence imposed under the repeater statute, sec. 359.12, Wis. Stats., upon a plea of guilty of accessory before the fact of the offense of manslaughter in the first degree, the defendant appeals. The facts are stated in the opinion.
The defendant Jardine pleaded guilty to the offense of accessory before the fact to the offense 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,
Here, as in the Blankenship Case, supra, 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 applicable, under which five years of imprisonment in the state's prison in addition to the maximum permissible under the manslaughter in the first degree 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 which 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 committed to the state reformatory, and that persons committed to the reformatory of the city of New York may be held in prison for three years, as above stated. But the conviction to the city reformatory is until paroled, not exceeding three years, while persons of the age stated convicted of rape, the sentence 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.
BARLOW, J., took no part. *204