I think section 688 of the Penal Code was intended only to provide for cases where the defendant is convicted of a second offense, like in character to that of which he had previously been convicted. Though the section is drawn in such form as to admit the construction given by the court below, yet we are not necessarily compelled to adopt a construction which was manifestly not intended by the legislature. The first paragraph of the section (688) prescribes amongst other things the kinds of crimes which are to be punishable when committed “ as second offenses ” under the two following subdivisions. These are “ felonies; attempts to commit felony ” and something which the codifiers call “ petty larceny,” by which it is presumed the offense of petit larceny was intended, and certain crimes committed in other states or countries. Petit larceny is now by the Code made a misdemeanor (§§ 532-535) and may be punished by the lightest fine. It could not have been the intention I think, to make it an absolute requirement of the statute that a person convicted of that misdemeanor, if he be convicted of a subsequent crime *301which may be punishable by imprisonment for life must he so punished / yet that is the necessary effect of the construction given by the court below. I think the language of the first provision of the section was intended to provide for the punishment of second offenses of the like grade of which a former conviction had been had ; so that upon a conviction of the same or a similar grade of offense, the convicted party should receive the highest, punishment, at least, to which he could have been sentenced on his first conviction, with power in the court in certain cases to increase or double that amount. So that if the convict could have been imprisoned for life on conviction of the firstfelony he must be sentenced on the second conviction for life, if it be a crime to which that punishment can apply. And if his sentence on thq first conviction must have been for less'than life, then the highest term, or a term not exceeding double the highest may be given.
It seems to me that we by this construction carry out what I think was the intention of the legislature, to wit: that a person convicted of a second felony shall receive at least the highest penalty that could have been adjudged on the first conviction ; and if that were less than imprisonment for life, an additional penalty not exceeding twice the highest may be imposed. I think the judgment should be reversed with directions to the court below to proceed to sentence the appellant anew under its discretionary power.
Judgment affirmed.