Haggerty v. People
6 Lans. 332
N.Y. Sup. Ct.
1872
Check Treatment
By the Court—Miller, P. J.

The statute (2 R. S., 685, § 20; 2 Edm. St., 709) provides that “If any prisoner, confined in a jail or in a State prison upon a conviction for a criminal offence, shall escape therefrom, he may be pursued, retaken and imprisoned again, notwithstanding the time for which he was imprisoned may have expired when he shall be retaken, and shall remain so imprisoned until tried for an escape, or until he shall be discharged on a failure to prosecute therefor.” Under this provision I think it is clear that the prisoner escaping can be held to answer for the residue *345of the term for which he has been sentenced, even if retaken after the expiration of the time. The statute is explicit that he may be retaken and imprisoned although the time has expired, and evidently means upon the sentence from which he has tempbrarily escaped. The latter clause of the enactment was not intended as a limitation or restriction on the first, but to provide for an additional imprisonment for the escape. If it was designed merely to punish for the escape, then the provision, “ notwithstanding the term for which he was imprisoned may have expired .at the time when he s hal be retaken,” would be useless, of no avail whatever, and should have been omitted. Besides, it is unreasonable to suppose that a prisoner, by committing another crime, could entirely evade and escape the consequences of the one for which he had been incarcerated. Ho such absurdity was intended; and it would be doing violence to the spirit of the act to give it any such construction. We are not, however, without authority upon the question discussed. The statute of Indiana is precisely like our own (2 G. & H., 454, §§ 55 and 56); and it has been held in that State that a prisoner who has been retaken may be ■ compelled to serve out the remainder of his time, even although it had expired before he was arrested and taken into custody. (Ex parte Clifford, 29 Indiana, 106; see, also, State v. Wamire, 16 id., 359; Cleek v. Commonwealth, 21 Gratt., 177; Dolaras Case, 101 Mass., 219; Leftwich v. Commonwealth, 20 Gratt., 716; Bland v. The State, 2 Indiana, 608.)

The prisoner being thus liable .to serve out the remainder of his term upon his old sentence, I see no objections to the proceedings taken by the district attorney to return him to the State prison, and am of the opinion that the Court of Sessions of Albany county, in which the prisoner was sentenced, and which is a court that has a permanent status, recognized by law, had jurisdiction to enforce the sentence and to carry out the judgment which had been previously rendered. Although the proceeding is novel in this State, perhaps, because no occasion has arisen where it has been *346required, yet it appears to have been sanctioned by the common-law practice in similar cases. Two methods of proceeding against criminals are sanctioned at common law. The one by information presented by the prosecuting officer on his own motion, and the other by indictment by a grand jury. The rule is laid down by Bishop (1 Grim. Proc., § 141) as follows: “ According to the common law of England, as it stood at the time when the body of the English common-law was by our ancestors brought over by them to this country, the proceeding of criminal information is, in cases of misdemeanor (with the exception of misprision for treason, which is a misdemeanor), a public remedy against the wrong-doer, concurrent with the indictment; subject, however, to practical exceptions and-limitations. The doctrine is in an English book stated thus: “ An information for an offence is a surmise or suggestion upon record, on behalf of the king (or queen regent), to a court of criminal jurisdiction, and is, to all intents and pur- poses, the king’s suit. It differs principally from an indictment in this, namely: that in an indictment the facts constituting the offence are presented to the court upon the oath of a grand jury; whereas, in informations, the facts are presented by way of suggestion or information to the court by some authorized public officer in behalf of the crown. Criminal informations derive their origin from the common law. They may be filed by the attorney-general, ex officio, upon his own discretion, without any leave of the court.” (See also Ohitty’s Crim. Law, 844, 847; Cole on Crim. Infs., 9; 1 Bishop’s Crim. Proc. (2d ed.), §§36, 141, 147, 712, 715; 1 Whar. Cr. Law, §§213, 214; King v. Okey et al., 1 Levinz, 61; Ratcliff is Case, 18 Howell St. Tr., 430; Foster’s Cr. Law, 40; 4 Black. Com., Appx. No. 3.) A prisoner who has escaped is always liable to arrest, and the subject as well as the mode of procuring his return is fully stated in 2 Bish. Or. Pro., § 1208, to and including § 1211.

The provision of the Constitution (art. 1, § 6) which declares that “ no person shall be held to answer for a capital or other infamous crime” * * * “ unless on presentment or *347indictment of a grand jury,” etc., applies to presentments for crimes, without affecting the remedy by information, when it may be necessary to revert to it as a proceeding to enforce punishment already incurred under a prior conviction and sentence. There being no conflict with the Constitution in such a proceeding, and the common law being in force in this State, where not abrogated or changed by statute (Canst., art. 1, § 17), the court proceeded according to law to determine the question whether the prisoner was the person who had been previously sentenced, and to direct that he be returned to the State prison to serve out the remainder of his time. The judge in his charge to the jury made some remarks in reference to the prisoner’s not being a witness on his own behalf, but he subsequently expressly withdrew that part of the charge and told the jury that they were not to take it into consideration at all.

I am inclined to think that if there was any error in this respect, it was cured by the explanation which followed the charge, within the principle laid down in Huloff v. The People (45 N. Y., 213).

As the Court of Sessions had jurisdiction and there was no error in the proceedings, they must be aflflrmed.

Proceedings aflflrmed.