#### The People ex rel. Philip Rodenberg, Relator, *v.*Warden of Penitentiary, Defendant.

(Supreme Court, New York Special Term,

December, 1911.)

Receiving stolen goods — Punishment.

One convicted of receiving stolen goods may be sentenced, under the provisions of section 1308 of the Penal Law, either to a State prison for not' more than five years, or to a county jail for not more than six months, but may not be sentenced to the penitentiary in the county of New York for a year.

Section 1453 of the Consolidation Act, which might authorize such a sentence, has been repealed.

Proceedings on the return of a writ of habeas corpus.

Louis Levy, Esq., for relator.

Charles S. Whitman, District-Attorney, for defendant..

Seabuey, J.

The relator was convicted of the crime of receiving stolen goods under section 1308 of the Penial Law in the Court of General Sessions. He was sentenced to the penitentiary for a period of one year. He has served more than six months of the sentence imposed, and now seeks his discharge upon a writ of habeas corpus. The ground upon which- the relator's application is 'based is that section 1308 of the Penal Law under which he was convicted provides two punishments for the crime of receiving stolen goods, either one of which the court -before which he was convicted had power to impose. The punishments prescribed include a sentence in State prison for not more th-an five years or not more than six months in a county j ail. The penitentiary is one of the county jails of Hew York. It appears, therefore, that the relator has been sentenced to the county jail for one year, while the provision of the statute under which he was convicted provided that one convicted under that statute should be sentenced to not more than six months in -a county jail. It is true that the court might have sentenced the relator to one year in State prison, *78but this is not the sentence which the court imposed. The court determined not to sentence relator to- State prison, and, instead, sentenced him to the penitentiary, which is a county-jail. Having determined to sentence the relator to a county j ail it was not competent for the court to- sentence him for a period longer than six months. The attempt is made to sustain the sentence for one year upon the authority of section 1453'of the Consolidation Act. This section provides as follows: “Whenever a conviction shall he had in any criminal court in the city o-f Hew York, of any person for buying or receiving any personal property felonio-usly stolen from another, knowing the same to have been stolen, such person may be sentenced, in the discretion of the court, to imprisonment in the penitentiary of the said city for the same term of time for which such person may by law be sentenced to imprisonment in a state prison.” If this provision o-f the Consolidation Act was still in existence a serious •question would even then exist -as to whether its general provision could he held to prevail over the special provision of the statute under which the relator was convicted. It is not, however, necessary to determine7 this question, as it is clear that it must be held that section 1453 of the Consolidation Act has been repealed by section 1308 of the-Penal Law, under which the relator was- convicted. Section 1308 of the Penal Law, in so far as its provisions relate to the sentence to be imposed, is a re-enactment of section 550 -of the Penal Code. The Penal Code, including section 550 referred to, was enacted into law in 1881. See Laws of 1881, ¿hap. 676. Section 1453 of the Consolidation Act was a re-enactment of section 13 of chapter 11 of the Laws of 1833. It is settled that the .Penal Code is to be deemed a later enactment of the Legislature than the Consolidation Act, and as the provision of the- Consolidation Act quoted above is repugnant to section 550 of the Penal Code the provision of the Consolidation Act is, in so far as it.is repugnant to the provision of the Penal Code, to he deemed to have been repealed. In People v. Jaehne, 103 H. Y- 182, 188, Andrews, J., said: “By the express prescription of the legislature, therefore, the Penal Code, although enacted he-*79fore the Consolidation. Act, is to have the same effect upon the Consolidation Act as if it had been passed after that act. This provision, although somewhat anomalous, does not, as we can perceive, transcend .the legislative power. It subordinates the Consolidation Act to the Penal Code, wherever the two statutes are in conflict, and moreover, what is material to notice, the provision affords the plainest .implication, that in the sense of the legislature there were, or might be, penal provisons in the 'Consolidation Act in conflict with the Penal Code. Por the purpose of construction the legislature has declared in what order of time the two statutes shall he deemed to have been enacted; and there being no. question of legislative power, it is the plain duty of courts, to construe the two statutes in accordance with this direction.” In the light of this authority and the provision of the statute under which the relator was convicted, it is evident that he could not he lawfully sentenced to the penitentiary for a period longer than six months. As the relator has- already served this period of time he is entitled 'to be discharged.

Writ sustained and relator discharged.