1931. Punishment, how determined.

Whenever in this chapter the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case must be determined by the court authorized to pass sentence, within such limits as may be prescribed by this chapter.

Derivation: Penal Code, § 13, in part, as amended L. 1892, ch. 218. For remainder of section, see § 1932, post.

People v. Bauer (1885), 3 N. Y. Cr. 433, 37 Hun, 407; People ex rel. Zeese v. Masten (1894), 79 Hun, 580, 29 N. Y. Supp. 891.

§ 1932. Punishment of corporation convicted of felony.

In all cases where a corporation is convicted of an offense for the commission of which a natural person would be punishable with imprisonment, as for a felony, such corporation is punishable by a fine of not more than five thousand dollars.

Derivation: Penal Code, § 13, in part, as amended L. 1892, ch. 218. For remainder of section, see § 1931, ante.

See cases under sec. 1831.

§ 1933. Punishment of acts committed out of the state. A person who commits an act without this state which affects persons or property within this state, or the public health, morals, or decency of this state, and which, if committed within this state, would be a crime, is punishable as if the act were committed within this state.

Derivation: Penal Code, § 676.

People v. Lyon (1885), 99 N. Y. 219, rev'g. 33 Hun, 623; People v. Martin (1902), 38 Misc. 67, rev'd 77 App. Div. 396, which was affirmed in 175 N. Y. 315, 76 N. Y. Supp. 953.

§ 1934. Punishment of accessory to felony.

An accessory to a felony may be indicted, tried, and convicted, either in the county where he became an accessory, or in the county where the principal felony was committed, and whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and although the principal has been pardoned or otherwise discharged after conviction.

Except in a case where a different punishment is specially prescribed by law, a person convicted as an accessory to a felony is

punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both.

Derivation: Penal Code, §§ 32, 33.

Starin v. People (1871), 45 N. Y. 333; Jones v. People (1880), 20 Hun, 545; People v. Ryland (1884), 97 N. Y. 126; People v. Basford (1885), 3 N. Y. Cr. 219; People v. Booth (1907), 52 Misc. 340, 102 N. Y. Supp. 62; See also People v. Gray, 25 Wend, 464.

1935. Punishment of felonies when not fixed by statute. A person convicted of a crime declared to be a felony, for which no other punishment is specially prescribed by this chapter, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment for not more than seven years, or by fine of not more than one thousand dollars, or by both.

Derivation: Penal Code, § 14.

People v. Meakim (1892), 133 N. Y. 214, 8 N. Y. Cr. 308, 404, 416, aff'g 61 Hun, 327, 15 N. Y. Supp. 917.

§ 1936. Punishment of accessory to misdemeanor.

When an act or omission is declared by statute to be a misdemeanor, and no punishment for aiding or abetting in the doing thereof is expressly prescribed, every person who aids, or abets another in such act or omission is also guilty of a misdemeanor.

Derivation: Penal Code, § 682.

People v. Clark (1891), 8 N. Y. Cr. 179-198, 14 N. Y. Supp. 642.

§ 1937. Punishment of misdemeanors when not fixed by

statute.

A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this chapter, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both. Derivation: Penal Code, § 15.

People v. McTameney (1883), 30 Hun, 505, 13 Abb. N. C. 56, 1 N. Y. Cr. 437, 66 How. Pr. 75; People ex rel. Van Houton v. Sadler (1884), 97 N. Y. 146, 3 N. Y. Cr. 474; People ex rel. Devoe v. Kelly (1884), 97 N. Y. 212,

2 N. Y. Cr. 437; People ex rel. Stokes v. Risely (1885), 38 Hun, 280, 4 N. Y. Cr. 109; People v. Parr (1886), 4 N. Y. Cr. 545; People v. Palmer (1887), 43 Hun, 397, 5 N. Y. Cr. 107; People v. Carter (1888), 48 Hun, 165; Loos v. Wilkinson (1889), 51 Hun, 74, 5 N. Y. Supp. 410; People v. Meakim (1892), 133 N. Y. 214, 8 N. Y. Cr. 413, aff'g 61 Hun, 327, 15 N. Y. Supp. 917, 8 N. Y. Cr. 308; People v. Christy (1892), 65 Hun, 349, 20 N. Y. Supp. 278, 8 N. Y. Cr. 482; People v. Madill (1895), 11 N. Y. Cr. 136, 91 Hun, 152, 36 N. Y. Supp. 1130; Matter of Vanderhoff (1896), 15 Misc. 434, 36 N. Y. Supp. 833; People v. Knatt (1898), 156 N. Y. 305, rev'g 19 App. Div. 628, 46 N. Y. Supp. 1098; People ex rel. Frank v. Keeper (1902), 38 Misc. 238, 77 N. Y. Supp. 145; People v. Olcese (1903), 41 Misc. 102, 83 N. Y. Supp. 973; People ex rel. Lodes v. Dept. of Health (1907), 117 App. Div. 858, 103 N. Y. Supp. 275; People v. Schermerhorn (1908), 59 Misc. 148, 112 N. Y. Supp. 222; see also Burns v. Norton, 35 N. Y. St. 418, 15 N. Y. Supp. 75; Matter of Hallenbeck, 65 How. 501, 1 N. Y. Cr. 437.

1938. Punishment when different penalties are provided by different provisions of law.

An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one; and a conviction or acquittal under one bars a prosecution for the same act or omission under any other provision.

Derivation: Penal Code, § 677.

Polinsky v. People (1877), 11 Hun, 390, aff'd 73 N. Y. 65; People ex rel. McDonald v. Keeler (1885), 99 N. Y. 475, rev'g 32 Hun, 563; People v. Krank (1888), 110 N. Y. 488, rev'g 46 Hun, 632; People v. Christy (1892), 65 Hun, 352, 20 N. Y. Supp. 278, 8 N. Y. Cr. 483; see also Blatchley v. Moser, 15 Wend. 215; People v. Church, 1 How. Pr. (N. S.) 366, citing 1 Bish. Crim. Law (7th Ed.) 778; City of Brooklyn v. Toynbee, 31 Barb, 282; Mayor v Hyatt, 3 E. D. Smith, 156; Rogers v. Jones, 1 Wend, 261; People v. Stevens, 15 Wend. 341; Mayor v. Allaire, 14 Ala. 404; Huffsmith v. People, 8 Colo. 175, 54 Am. Rep. 550; McRea v. Mayor, 59 Ga. 168, 27 Am. Rep. 390; Robbins v. People, 95 Ill. 178; Wragg v. Penn. Township, 94 Ill. 23; Waldo v. Wallace, 12 Ind. 584; Shafer v. Mumma, 17 Md. 331; State v. Lee, 29 Minn. 445; Brownsville v. Cook, 4 Neb. 105; State v. Sly, 4 Oreg. 278, 279; State v. Bergman, 6 Oreg. 343; State v. Williams, 11 S. C. 292; State v. Hamilton, 3 Tex. App. 643; McLaughlin v. Stevens, 2 Cranch, C. C. 149; Howe v. Plainfield, 8 Vroom, 150; Greenwood v. State, 6 Baxt. 567, 32 Am. Rep. 539; Hughes v. People, 7 Crim. L. Mag. 280, 285, note; Com. v. Trichey, 13 Allen, 559; Com. v. McConnell, 11 Gray, 204; Reg. v. Gilmore, 15 Cox Cr. Cas. 85, 36 Eng. Rep. 500.

§ 1939. Mitigation of punishment in certain cases.

Where it appears, at the time of passing sentence on a person convicted that he has already paid a fine or suffered an imprison

ment for the act of which he stands convicted, under an order adjudging it a contempt, the court, passing sentence, may mitigate the punishment to be imposed, in its discretion.

Derivation: Penal Code, § 681.

§ 1940. Punishment for felony when person convicted has been previously convicted of a misdemeanor.

A person, who, having been convicted within this state of a misdemeanor, afterwards commits and is convicted of a felony, must be sentenced to imprisonment for the longest term prescribed for the punishment upon a first conviction for the felony.

§ 1941. Punishment for second offense of felony or petit larceny.

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:

1. If the subsequent crime is such that, upon a first conviction, the offender might be punished, in the discretion of the court, by imprisonment for life, he must be sentenced to imprisonment in a state prison for life;

2. 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. Derivation: Penal Code, § 688.

People v. Gibson (1875), 5 Hun, 542; People v. Raymond (1884), 32 Hun, 123, 96 N. Y. 38; People v. Cook (1887), 45 Hun, 37; People v. Price (1888), 6 N. Y. Cr. 141, 2 N. Y. Supp. 414; People v. Price (1889), 53 Hun, 185, 6 N. Y. Supp. 833, 119 N. Y. 650; People v. Bosworth (1892), 64 Hun, 72, 19 N. Y. Supp. 114, 45 N. Y. St. 512; People v. Sickles (1898), 156 N. Y. 541, 13 N. Y. Cr. 277, aff'g 26 App. Div. 470, 50 N. Y. Supp. 377; Kenny, People ex rel. v. Creamer (1898), 23 Misc. 13, 49 N. Y. Supp. 1037, 30 App. Div. 624, 53 N. Y. Supp. 1111; People v. Reilly (1900), 49 App. Div. 218, 63 N. Y. Supp. 18, 14 N. Y. Cr. 458, aff'g 164 N. Y. 600; People v. Johnston (1906), 112 App. Div. 812, 99 N. Y. Supp. 561, 20 Crim. Rep. 141, see also

People v. Caesar, 1 Park. 648, Parker, J.; People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401; Kelly v. People, 115 Ill. 583, 56 Am. Rep. 184; Chetworth v. Com. (Ky.), 12 Crim. L. Mag. 234.

§ 1942. Punishment for fourth conviction of felony.

A person who, after having been three times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which if committed within this state would be felonies, commits a felony within this state, shall be sentenced upon conviction of such fourth, or subsequent, offense to imprisonment in a state prison for the term of his natural life, but after serving a period of time equal to the maximum penalty prescribed for the offense of which he is convicted, less the usual commutation for good conduct, shall become subject to the jurisdiction of the board of commissioners of paroled prisoners, and may be paroled upon such conditions as said board may prescribe, but said board shall not grant an absolute discharge to such prisoner.

Derivation: Penal Code, § 688a, added L. 1907, ch. 645.

People v. Fabian (1908), 126 App. Div. 95.

§ 1943. [Renumbered § 2461 by L. 1909, Ch. 524. In effect May 27, 1909.]