After reargument of a point originally suggested by the court on argument, we are of opinion that the judgment is erroneous. The County Court tried the defendant upon an indictment that contained three counts — burglary in the third degree, grand larceny in the first degree and criminally receiving stolen goods. The defendant was found guilty under the first two counts, and was sentenced upon the first count to- an indeterminate term in a State prison, and upon the second count to a term of seven years to commence at the expiry of the said sentence upon the first count. . He was not charged in the indictment as being a second offender.
The verdict upon the two counts was simultaneous. The mere fact that the sentence with respect to the first count was pronounced in a breath before that relating to the second count did not make the defendant a second offender at the time of the sentence upon the latter count. The law takes no note of the fractions of a day, save to prevent injustice.
The theory of section 1941 of the Penal Law and like statutes that prescribe heavier punishment for a second offender is that he has not reformed since his first offense, but has per*320sisted in breaking the law. {People v. Raymond, 96 N. Y. 38, 41; Carey v. State, 70 Ohio St. 121.) The reason for the rule had no play in such a case as the one at bar.
We think, then, that the defendant was entitled to the mercy of an indeterminate sentence under section 2189 of the Penal Law when the court dealt with the count for grand larceny. {Carey v. State, supra.)
The sentence is set aside, and it is ordered that the defendant be brought before this court for resentence on the 3d day of January, 1917, at one o’clock of said day. (See People v. Bretton, 144 App. Div. 282; appeal dismissed, 210 N. Y. 585; People v. Scheuren, 148 App. Div. 324.)
Thomas; Stapleton and Putnam JJ., concurred; Carr, J., not voting.
Judgment of conviction of the County Court of Kings county affirmed' on reargument; but the sentence imposed by said court is set aside, and it is ordered that the defendant be brought before this court for resentence on Wednesday, January 3, 1917, at one o’clock p. M.