The order should be reversed and the writ dismissed and the relator remitted to the custody of the sheriff.
The relator was charged with petit larceny as a second offense. The Police Court of the city of Rochester held that it had no jurisdiction to try a person for that offense and committed relator to await the action of the grand jury. The order appealed from was based upon the proposition that the Police Court had the exclusive jurisdiction to try relator for the offense charged and had no right to commit him to await the action of the grand jury. This we regard as erroneous. Petit larceny is denominated a misdemeanor by section 535 of the Penal Code and is punishable as such by imprisonment in a penitentiary or county jail for not more than one year or by a fine of not to exceed $500, or by both. (Penal Code, § 15.) Petit larceny as a second offense is punishable by imprisonment for not less than one year nor more than two years. (Penal Code, § 688.) Where the imprisonment for a crime is for a term of more than one year it must be inflicted by confinement at hard labor in a State prison except where special provision is made by statute as to the punishment for any particular offense or class of offenses or offenders, and except as to females and minors who may be sent to specified institutions, persons between sixteen and thirty who may be sent to the Elmira Reformatory ; children under twelve years of *857age who may be sent to the House of Refuge, State Industrial School or Hew York Training School for Girls. (Penal Code, § 704.)
A felony is a crime which may be punishable by death or imprisonment in a State prison. (Penal Code, § 5.) Any other crime is a misdemeanor. (Penal Code, § 6.) Under these definitions petit larceny, second offense, is a felony. It is not denominated a misdemeanor anywhere in the Penal Code. Crimes not cognizable by Courts of Special Sessions or Police Courts must be prosecuted by indictment. (Code Critn. Proc. § 4.) Courts of Special Sessions throughout the State have exclusive jurisdiction of petit larceny charged as a first offense, but not charged as a second offense. (Code Critn. Proc. § 56.) Police Courts have only such jurisdiction as is specially conferred upon them by statute. (Code Grim. Proc. § 74.) The Police Court of the city of Rochester has exclusive jurisdiction of all crimes of which Courts of Special Sessions have cognizance under section 56 of the Code of Criminal Procedure, and also of any other misdemeanor (Charter of Rochester [Laws of 1907, chap. 755], § 468), and has power to impose a sentence of imprisonment not exceeding one year and a fine not exceeding $500 upon conviction for a misdemeanor, except where a different punishment is by law prescribed for such offense. (§ 476.)
It seems to .us apparent that under these provisions of the charter the Police Court has no jurisdiction to try or sentence a person for the crime of petit larceny as a second offense. It is claimed the court has such jurisdiction because it is given jurisdiction of any misdemeanor, but this crime is not- a misdemeanor. It is a felony, as we have seen, by the express definition of felony and misdemeanor given in the Penal Code, and we think the Legislature had this definition in contemplation in the provision giving this court jurisdiction of any misdemeanor. It is said that petit larceny, whether charged as a first or second offense, is the same crime denominated in the Penal Code a misdemeanor, and that the difference in the crime, whether alleged as a first or a second offense, affects the punishment alone, and does not change the nature of the offense as a misdemeanor. It seems to us that this is a forced and unnatural construction of the provision of the charter referred to. The power is only given this court to impose a sentence of imprisonment not exceeding one year for a misdemeaner, except where a different *858punishment is by law prescribed for such offense, and it seems to be claimed that under this exception this court can impose a sentence for two years.
We cannot believe the Legislature intended to give this court any such power. We do not understand the court is given power to impose a sentence for any term of confinement in a State prison. It could only sentence to a penitentiary in any event, and if this be so, then there would be one place of imprisonment for the crime in the city of Eochester, and another in the counties throughout the State, because in the latter counties the confinement would have to be in a State prison. We see no occasion for the construction of the charter of Eochester contended for, and made the basis of the order appealed from. It has heretofore been supposed persons charged with this crime had to be prosecuted by indictment in the higher courts. This procedure has been adopted in Eochester.
This is a new departure, and we think an unfortunate one. It requires parties to be tried without indictment for a crime for which the. punishment is, or may be, confinement in a State prison for two years, and this should not be so.
We think the order appealed from is erroneous and should be reversed.
McLennan, P. J., concurred.
Order affirmed.