People v. Butler , 3 Cow. 347 ( 1824 )

Curia,

per Savage, Ch. J.

The language of this statute, upon which we are asked to put a construction, has prevailed in various acts, through a series of revisáis, and in relation to different offences. The statutes providing for the punishment of second offences, are worded differently; some of them declaring, “ that every person who shall be a second time duly convicted or attainted of any of the said felonies committed after the said first conviction /” (act of 2.6th March, 1796, 3 Greenleaf, 160, s, 2;) sometimes, “shall be a second time, or oftener, duly convicted, or attainted,” &c. (id. s. 4.)

Similar provisions passed into the act of 21s< March, 1801, (1 K. & R. 254, s. 4-5) and the act of the 19th March, 1813, (1 R. L. 409, 410, s. 5 & 13.)

A second offence of petit larceny not being provided fos^. jn the revision of 1813, the Legislature, in 1819, adopted the phraseology which had provided for this case in the old rpvisions. This act of 1819 is the one under consideration.

We think the difference of phraséology in these several statutes was entirely accidental ; that the Legislature meant |he same thing in each, which is, that a conviction shall precede the second offence. The reasonable construction is given by Hawkins. (P. C. ch. 40., s. 3, and Jac. L. D. tit. Convict, 1) to which we were referred by the prisoner’s coun-, sel, where the rule is thus laid down-—“ When a statute, makes a second offence felony, or subject to a heavier punishment than the first, it is always implied that such second, offence ought to be committed after a conviction for the first; for the gentler method shall first be tried, which, perhaps, may prove effectual.”

The prisoner was sentenced to the county gaol of Oneida, for 6 months.

Rule accordingly,