Opinion
December 19, 1957
Present — Foster, P.J., Bergan, Coon, Halpern and Gibson, JJ.
Appeal from an order of a Special Term, Supreme Court, Chemung County. Relator has been convicted of carnal abuse of a child as a felony and sentenced to a term of from one day to life. After serving some time in prison he has been released on a writ of habeas corpus on the ground the offense stated in the indictment was not a felony, but a misdemeanor. The indictment alleges that on December 20, 1954 the offense was committed with a child "of the age of 10 years". The statute at that time provided that such an offense with a "child of the age of ten years and over" was a misdemeanor. (Penal Law, § 483-b; L. 1950, ch. 525.) The companion section (483-a) provided that such an offense would be a felony if committed with a "child of the age of 10 years or under". It does not seem to be disputed by appellant that these sections read just this way, present a conflict or that in such a conflict the relator ought to be deemed to have committed a misdemeanor. It is argued, however, that in the same year that section 483-b was enacted using the words "ten years and over", the Legislature had previously used in section 483-b other language: "child over the age of ten years", which would have avoided the conflict and that the earlier language should be accepted. This earlier amendment became law on March 30, 1950 by chapter 292 of the laws of that year; but the words "child of the age of ten years and over" were enacted by chapter 525 and became law April 11, 1950. We are unable to construe this in a criminal case other than the way the record of enactments reads on its face to mean that the earlier enactment was superseded by the latter one and the language, which in this respect had been in the statute before either of the 1950 amendments and had been enacted first in 1929 (ch. 684), was restored to it. Order unanimously affirmed.