In re Bray
Bray was brought before the recorder of Binghamton,' holding a court of special sessions, and wаs charged with the offense of assault .and battery. He pleaded not guilty, demanded a jury, was tried, and convicted. The certificate of conviction adjudged that he be imprisoned in the .Albany сounty penitentiary for the term of three months, or pay a fine of $100,
Chapter 214, Laws 1888, p. 334, § 3, gives the recorder authority to hold courts of spеcial sessions, and says: “Said court shall render judgment upon such conviction, and shall inflict such punishmеnt * * * as any other court having jurisdiction of the offense could inflict; and shall have the same jurisdictiоn to sentence and punish the persons so convicted as courts of sessions or courts of oyer and terminer have for the same offense.” I think the charge of assault and battery must be equivalent to a charge of assault in the third degree. Pen. Code, § 219. Assault in the third degree is, by section 222 оf the same Code, punishable by imprisonment for one year, or a fine of not more than $500, or both. But by section 56, Code Crim. Proc., courts of special sessions, except in New York and Albany, havе exclusive jurisdiction of assault in the third degree; and, by section 717 of the same Code, the punishment which may be inflicted by such courts is limited to a fine of $50, or imprisonment for six months. Section 62, Code Crim. Proc., рrovides that a court of special sessions is to be held by one justice of the peace, “unless provision is otherwise made by law,” and provision is thus made in the city of Binghamton. This provision gives the recorder the same power to sentence and punish the persons so conviсted as courts of sessions or courts of oyer and terminer have for the same offense. Now, if a prisoner were convicted of assault in the third degree in either of those courts, section 222 of the Penal Code would apply. But the relator argues that courts of special sessions have exclusive jurisdiction. Section 56, Code Crim. Proc. On the other hand, a prisoner indicted fоr assault in the first degree might be convicted in a court of oyer and terminer of assault in the third degree, and a person so convicted might be punished under section 222, Pen. Code. I think, therefore, that the clause above cited from the Binghamton charter was intended to enlarge the power of the recorder holding special sessions as to the extent of punishment he can imрose. It is analogous to the third subdivision of section 68, Code Crim. Proc., and the fourth subdivision of section 64 of the same Code, which give these increased powers of punishment to the special sеssions of Albany, and to the special sessions of New York.
It is next urged that the sentence is void because in the alternative. The Code of Criminal Procedure (sections 484, 718) authorizes the court whiсh imposes a fine to direct that defendant be imprisoned until the fine be paid, specifying the еxtent of the imprisonment, not to exceed one day for every dollar. That is what was done in this сase.' The commitment expresses this exactly, reciting that defendant was adjudged to pay а fine of $100, and in default to be imprisoned for three months. Three months are less than 100 days. Whenever defendant should pay his fine he would be entitled to his discharge. The certificate of judgment is not quite аs plain, because, owing to the use of a printed form, the words “three months” are twice insertеd. But there can be no misunderstanding as to the commitment directing the keeper of the penitentiary to hold Bray. That recites the imposition of a fine, and the judgment that in default he be imprisonеd the specified time of three months. I think it would be unreasonable to hold that the certificatе of conviction had any other meaning. I do not mean to say that a sentence plainly in the alternative is good; but the law authorizes the imposition of a fine, and of imprisonment until it be pаid, for a specified time, not exceeding the statutory limit. Here the fine is imposed, the time of imрrisonment specified; it does not exceed the limit, and Bray does not claim to have paid his fine. The mean