People ex rel. Cosgriff v. Craig

• Decision Date: 06 April 1909
• Parties: PEOPLE ex rel. COSGRIFF v. CRAIG, Sheriff.
• Court: New York Court of Appeals Court of Appeals

195 N.Y. 190

88 N.E. 38

PEOPLE ex rel. COSGRIFF

v.CRAIG, Sheriff.

Court of Appeals of New York.

April 6, 1909.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Habeas corpus by the People, on the relation of Fred Cosgriff, against William H. Craig, as sheriff of Monroe County. From an order of the Trial Term (60 Misc. Rep. 529,112 N. Y. Supp. 781) discharging the relator, the district attorney of Monroe county appealed to the Appellate Division, where the order was sustained (114 N. Y. Supp. 833) and the district attorney appeals. Reversed.

Charles B. Bechtold, for appellant.

George S. Van Schaick, for respondent.

CULLEN, C. J.

The relator was arrested on a warrant charging him with having committed petit larceny as a second offense and brought before the police justice of Rochester. The justice held him on the charge and committed him to jail to await the action of the grand jury. Thereupon the relator sued out a writ of habeas corpus, on the return to which he was discharged. The statutory provisions affecting the question before us are the following: By section 468 of the charter of the city of Rochester (Laws 1907, p. 2354, c. 755) the police court is granted exclusive jurisdiction to try any charge of misdemeanor committed in the city by a person who may be brought before it. By section 476 the court is empowered upon a conviction for a misdemeanor to impose a sentence of imprisonment not exceeding one year or a fine not exceeding $500. By section 688 of the Penal Code it is provided: ‘A person who, after having been convicted within this state of a felony, or an attempt to commit a felony, or of petit larceny, or, under the laws of any other state, government or country, of a crime which, if committed within this state, would be a felony, commits any crime within this state, is punishable, upon conviction of such second offense, as follows: * * * If the subsequent crime is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than the longest term, nor more than twice the longest term, prescribed upon a first conviction.’ Section 704 of the Penal Code provides that: ‘Where a person is convicted of a crime, for which the punishment inflicted is imprisonment for a term exceeding one year, or is sentenced to imprisonment for such a term, the imprisonment must be inflicted by confinement at hard labor in a state prison.’ Section 5 defines a felony as a crime which is or may be punishable by either death, or imprisonment in a state prison. Sections 530 and 531 define grand larceny in the first and second degrees, and the offense charged against the relator falls within neither definition. Section 532 enacts that every other larceny (i. e., any not included in sections 530 and 531) is petit larceny, and section 535 declares that petit larceny is a misdemeanor. For the relator it is contended that the charge for which he was arrested is a misdemeanor, and that, therefore he should have been tried on that charge in the police court, and that the police justice had no power to remand him to await prosecution by indictment. This contention the courts below have sustained. On the other hand, it is contended by the district attorney that the larceny, being charged as a second offense, was not a misdemeanor, but a felony, of which the police court had no jurisdiction, and that the defendant was properly committed to await indictment.

At common law petit larceny was a felony, and it has been questioned whether the Revised Statutes of 1830 reduced the offense to the grade of misdemeanor (Ward v. People, 3 Hill, 395), though doubtless such was the intent of the Legislature, and the statute prescribed as punishment for the offense imprisonment not to exceed six months and a fine not exceeding $100. Under the Penal Code the imprisonment may be for one year. By subdivision 3, § 9, Rev. St. (2 Rev. St. [1st Ed.] pt. 4, c. 1, tit. 7, p. 700), it was enacted that on a subsequent conviction for petit larceny the offender should be sentenced to imprisonment for a term not exceeding five years. This provision unquestionably made petit larceny, charged as a second offense, a felony (People v. Lyon, 99 N. Y. 210, 1 N. E. 673), and the crime was always prosecuted by indictment and never before the Special Sessions. In 1882 the Penal Code was substituted for the provisions of the Revised Statutes relating to the definition and punishment of crime. The Code made but two changes bearing on the question before us: The first, the express definitions of sections 532 and 535 that all other larceny is petit larceny, and that petit larceny is a misdemeanor; second, the substitution of section 688 of the Penal Code for section 9 of the Revised Statutes. 2 Rev. St. (1st Ed.) p. 699. That legislation prescribing increased punishment for second or subsequent offenses is constitutional cannot be denied. McDonald v. Massachusetts, 180 U. S. 311, 313, 21 Sup. Ct. 389, 45 L. Ed. 542. It is insisted, however, for the relator that a prior conviction is no ingredient of the second offense. This view is fundamentally erroneous. The question was raised and decided by this court in the case of People v. Sickles, 156 N. Y. 541, 547,51 N. E. 288, 290. There it was held that, not only the prior conviction must be charged in the indictment, but must be proved before the jury on the trial. Judge Gray said for the court: ‘I regard it as a necessary and logical conclusion, where an increased punishment is prescribed by the statute upon conviction for a second offense, that the prior conviction enters as an ingredient into the criminality of the prisoner. Not that the fact of the prior conviction tends, in any wise, to prove the commission of the second offense, but that it aggravates the guilt of the prisoner, and as a hardened, or unreformed, criminal, subjects him to an increased punishment for the repeated crime.’ In the same case it was said by the Appellate Division (26 App. Div. 470, 472,50 N. Y. Supp. 377, 378): ‘There is nothing which prevents the Legislature from making an act committed by one who has previously been guilty of a crime a greater offense than the same act when done by a person hitherto innocent of offense; * * * but under section 688 of the Code for the second offense the defendant must be sentenced to at least the longest term provided as a punishment for the first offense, and may be sentenced for twice that time. It seems to me clear that the difference in the punishments necessarily constitutes a difference in the offenses, the distinction between which depends in no wise on nomenclature. It may be, if the constitutional provision as to cruel and inhuman punishments did not prevent, that we might go back to the old common law and make every felony punishable by death in the discretion...