I dissent from so much of the determination as limits remission of the matter to determination of the legality of imposition of a term of imprisonment for five years, pursuant to section 1944 of the Penal Law, and vote to remit for the additional purpose of correction of sentence imposed, pursuant to section 1048 of the Penal Law, from twenty-five to twenty years.
Section 1048 of the Penal Law, as amended by chapter 32 of the Laws of 1928, and effective as of the 1st day of July, 1928, reads:
“ Punishment for murder in the second degree. Murder in the second degree is punishable by imprisonment under an indeterminate sentence, the minimum of which shall be not less than twenty years and the maximum of which shall be for the offender’s natural life; and any person serving a term of imprisonment for fife, under an original sentence for murder in the second degree, on the first *647day of September, nineteen hundred and seven, shall be deemed to be thereafter serving under such an indeterminate sentence.” (Emphasis mine.)
This section was derived from section 187 of the Penal Code (Laws of 1881, chap. 676), which provided that “ Murder in the second degree is punishable by imprisonment for the offender’s natural life.” In 1907 this section was amended to read as it does in its present form (Laws of 1907, chap. 738), save for the above emphasized phrase “ not less than,” which was added by the amendment of 1928. When, in 1907, the Legislature reduced the term of imprisonment from life to an indeterminate sentence, it undertook to do so not only prospectively but also with respect to those offenders who were then imprisoned for life. Obviously, in effecting such a general commutation, the Legislature intended that it conform to a fixed standard. That standard was stated to be the “ indeterminate sentence,” provided in the amendment of 1907 as punishment to be thereafter imposed. It followed, then, that this sentence itself was a fixed one, to be imposed in the language of the statute. The 1907 amendment was considered and construed in People v. Pechota (209 App. Div. 164; affd., without opinion, 240 N. Y. 574) to the effect that a sentencing judge had no power to impose a minimum other than twenty years. In that case it was held that the provision calling for a term of from twenty years to life must be considered as intended to be mandatory and exclusive, and Martin, J., writing for the court, states (at p. 166): “ Although the Legislature provided that there should be an indeterminate sentence for the crime, it was provided what that' indeterminate sentence should be, not less than twenty years nor more than fife.”
The commutation provision remains in the statute as amended in 1928. The amendment does no more than conform the wording of the statute to the interpretation placed upon it by the Pechota case (supra), namely, that the minimum sentence be fixed at “ not less than ” twenty years. Had the Legislature intended to differentiate between the commutation provision and sentences prospectively to be imposed, it would have so provided in the amendment of 1928. In the absence of such differentiation, we must read the amendment in the light of its plain language and intent.
Authority such as People ex rel. Schali v. Deyo (181 N. Y. 425) and People ex rel. Mason v. Brophy (235 App. Div. 432) consider section 687-a of the Penal Code and its successor statute, section 2189 of the Penal Law, generally in dealing with the imposition of indeterminate sentences. These statutes bear no relationship to the question at hand and are not analogous. Section 687-a *648of the Penal Code (Laws of 1901, chap. 425), dealt with crimes the maximum punishment for which was five years or less, and successive amendments thereof expressly excluded punishment for murder from its province (Laws of 1902, chap. 282; Laws of 1906, chap. 36; Laws of 1907, chap. 737, as, thereafter, did section 2189 of the Penal Law (Laws of 1909, chaps. 88 and 282, and as thereafter amended). Construction of these statutes was not affected by what I believe to be the dominant element in construing section 10.48 of the Penal Law, namely, a tying in of the indeterminate scope of the sentence with a general commutation provision calling for a fixed term.
My conclusion is that the sentence as set forth in the statute is fixed and exclusive and that an offender must be sentenced in its language to a term of not less than twenty years nor more than life. It was error, therefore, to increase the fixed minimum to a period of twenty-five years. This error may also be corrected upon the remission and resentencing. (People ex rel. Miresi v. Murphy, 253 App. Div. 441.)
The order dismissing the writ should be reversed, the writ sustained, and matter remitted to the Court of General Sessions of the County of New York for resentencing of relator in accordance with law, and for determination, upon a proper record, whether relator was armed within the meaning of section 1944 of the Penal Law at the time of the commission of the felony in question.
Tayloe, J., concurs.
Order dismissing the writ of habeas corpus reversed on the law and the facts, writ sustained, and the matter remitted to the Court of General Sessions of the County of New York for determination, upon a proper record, of whether relator was armed within the meaning of section 1944 of the Penal Law at the time of the commission of the felony for which he was punished; and relator remanded for resentence in accordance with such determination.