The police justice of the city of Rochester held the relator upon the chax-ge of petit larceny, committed in that city and charged as a second offense. Instead of trying him the police justice committed him to the custody of the sheriff of Monroe county to await the action of the grand jury.
The learned justice before whom the relator was brought on a-writ of habeas corpus held that the offense of petit larceny, although *853charged as a second offense, was a misdemeanor, and that since the charter of the city conferred upon the Police Court exclusive jurisdiction in the first instance to try and determine all offenses of which Courts of Special Sessions have exclusive jurisdiction, when such offenses are committed within the city, and as the Police Court “ also has exclusive jurisdiction in the first instance to try for any other misdemeanor committed in the city, any person who is brought before said court charged with such offense ” (Charter of the city of Rochester [Laws of 1907, chap. 755], § 468), the duty devolved upon that court to try the accused upon such charge.
The learned district attorney challenges the correctness of the holding that petit larceny charged as a second offense is a misdemeanor. Some criminal offenses are specifically designated as felonies and some as misdemeanors ; others are classified generally. Under the general classification, felonies are such crimes as are or may be punishable by either death or imprisonment in a State prison; any other is a misdemeanor. (Penal Code, §§ 4, 5, 6.) Where the punishment inflicted is imprisonment for a term of less than a year, the imprisonment must be in the county jail, except when otherwise specially prescribed by statute. (Penal Code, § 702.) Where the term of imprisonment is for a year, the imprisonment may be either in a county jail, a penitentiary or State prison ; but no person shall be sentenced to imprisonment in a State prison for less than a year. (Penal Code, § 703.) Where the imprisonment is for a term exceeding one year, the confinement must be in a State prison (Penal Code, § 704); but it is expressly provided in the last section that such section and sections 702 and 703 shall not apply to a case where special provision is made by statute as to the punishment for any particular offense or class of offenses or offenders, and specifically excepts certain classes, such as minors, female convicts and others which need not be here named. A felony for which no other punishment is specially prescribed is punishable by imprisonment for not more than seven years, or by a fine of not more than $1,000, or by both. A misdemeanor for which no other punishment is specially prescribed is punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both. (Penal Code, §§ 14, 15.)
The felonies and misdemeanors referred to in sections 14 and 15 *854must necessarily be such as are specifically so designated and declared. Every larceny not grand larceny in the first or second degree is petit larceny (Penal Code, § 532), and petit larceny is expressly declared to be a misdemeanor. (Penal Code, § 535.) In the absence of any special provision, it is, therefore, punishable by imprisonment in the county jail or penitentiary for a term not exceeding one year, or by a fine not exceeding $500, or by both.
Section 688 of the Penal Code, however, provides that a person who, after having been convicted in 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 by imprisonment for life in a State prison, if the subsequent crime is such that iqson a first conviction the offender might be punished by imprisonment for that time. As regards other offenses punishable by imprisonment upon first conviction for any term less than that, the person must be sentenced for not less than the longest term nor more than twice the longest term prescribed upon first conviction.
So that a person convicted of petit larceny charged as a second offense may be imprisoned for a term of two years. It is, therefore, argued by the district attorney that such an offense is a felony. That would seem to follow were it not for the express provision of the Penal Code declaring petit larceny to be a misdemeanor, and other provisions contained in that Code to which attention will be presently called.
As has been seen the general classification of crimes as felonies and misdemeanors according to the place of imprisonment, does not apply to a crime which is specifically declared to be a felony or a misdemeanor, and so can have no application to petit larceny. The mere fact that petit larceny charged as a second offense is punishable more severely than the first offense does not, as it seems to me, change the character of the crime so as to make it a felony, in the face of the declaration of the Penal Code declaring every larceny not grand larceny in the first or second degree petit larceny and a misdemeanor.
It is true that under the Revised Statutes (2 R. S. 699, § 9; Id. *855702, § 30) petit larceny charged as a second offense was a felony, but that was because it was expressly made a felony and punishable by imprisonment in a State prison, and a like provision was contained in the original draft of the Penal Code submitted in 1864. Section 688 of the Penal Code, as finally enacted by the Legislature, contains in substance section 750 of the Penal Code as reported by the commissioners, except that subdivision 3 of the original draft, which provided that a subsequent conviction for petit larceny should be punishable in a State prison for a term not exceeding five years, is omitted, and the provisions of the Revised Statutes in that regard were repealed by the Penal Code and not re-enacted therein. (See Laws of 1881, chap. 676, §§ 688, 726, 727, as amd. by Laws of 1882, chap. 102. See, also, Laws of 1886, chap. 593, § 1, subd. 4, ¶ 1; Id. §§ 2-4.) In thus amending the statute and expressly declaring all larceny not grand larceny misdemeanors, the legislative intent seems reasonably clear to make the crime of petit larceny, although charged as a second offense, a misdemeanor.
Assuming that petit larceny charged as a second offense, if a misdemeanor, is not punishable by imprisonment in a State prison, as seems to be contended by the district attorney and conceded by the attorney for the relator, it does not follow that the provision of section 688 of the Penal Code imposing a double penalty for a second offense will become ineffective in a case like this. Section 3 of chapter 574 of the Laws of 1869 (as amd. by Laws of 1892, chap. 587, and Laws of 1893, chap. 114) provides that if the offense is punishable with imprisonment in a State prison for a term of five years or less the imprisonment may be in the penitentiary in the discretion of the court in certain of the judicial departments of this State, including this department, and in this case to the Monroe County Penitentiary (Charter of city of Rochester, § 477).
The Police Court seems to have full power to impose the adequate punishment. (Charter of the city of Rochester, § 476.) The limitation upon the power of that court to impose imprisonment not exceeding a year for a misdemeanor is subject to the qualification “ except where a different punishment is by law prescribed for such offense.” And besides the matter may be removed before the grand jury as provided by sections 57 and 58 of the Code of Criminal Procedure. (Charter of the city of Rochester, § 473.) There may be *856little if any difference in punishment whether the imprisonment is in a State prison or in the penitentiary; but the consequences following a conviction of felony are much more serious than a conviction for a misdemeanor, such, for instance, as the loss of political rights. If petit larceny charged as a second offense is a felony, then every misdemeanor punishable by imprisonment for a year, even if expressly declared to be a misdemeanor, committed after a conviction for petit larceny, becomes a felony, since the punishment may then be double, and that will include offenses against mere police regulations such as unlicensed peddling (Penal Code, § 384e) and many others which need not be named.
We think the order should be affirmed.
All concurred, except McLennan, P. J., and Williams, J., who dissented in an opinion by Williams, J.