1 Cow. 144 | N.Y. Sup. Ct. | 1823
It is supposed that the prisoner is entitled to his , . . , discharge, because the judgment of the Justices is so entirely indefinite and uncertain, as to render the whole void. We think differently. The power of this Court of special sessions is derived from the statute; by which it will be perceived that, on conviction, the Justices are authorized toim- . posc a fine or imprisonment, or both. These are distinct punishments. They do not necessarily stand or fall togeth; er. As we read the judgment, Sweatman is unconditionally sentenced to imprisonment for 30 days. This branch of the sentence is certain, and being disconnected with that part 1-1 1 n ..... . , . , , which awards a fine, and the term not having expired, the prisoner must be remanded for the residue of that term at least. With regard to the other branch of the sentence there is more difficulty. But, without determining whether it be void, as uncertain or contingent, we are satisfied, on an
The words judgment or execution, though tiie words or other process were omitted, seem to be broad enough to reach a conviction and commitment by a special session. In Rex v. Vipont and others, (2 Burr. 1165,) Ld. Mansfield says, that every conviction ought to contain a judgment1 of the forfeiture, and at p. 1166, Wilmot, J. says that a conviction is equal to a verdict and judgment; that there must be a judgment of forfeiture in a conviction ; that there must be a judgment to levy it; for every execution is founded on a judgment. The same language was held by Ld. Kenyon, in Rex v. Harris, (7 T. R. 238,) and vid. Nares on Penal Convictions, 57 to 71. The warrant for the purpose of levying the fine, or committing the offender, is sometimes said in the books to he in the nature of an execution, (id. 64,) and sometimes is called an execution, (id. 65.) So that imprisonment upon a summary conviction, by our special sessions, seems to come not only within the spirit, hut the very words of the 1st section of the act for the relief of debtors, See.
In tiie higher courts, the analogy between a conviction and fine, and a judgment for a debt or damages in a civil action, is perfect. In The King v. Wade, (Skin. Rep. 12,) upon a conviction and fine of 1001. for barratry, it was levied by levari facias; and in the same case, reported in SirT.
It seems that, in England, a fine does not come within any general act for relief from imprisonment, or insolvency, (1 Ch. Cr. L. 811, and the eases there cited. Rex v. Norris, 4 Burr. 2142.)
The first act, authorising a trial for petit larceny, by a special session, composed of three Justices, was passed by the legislature of the late colony of New-York, Sept. 1st, 1744. (1 Smith & Livingston, 339. Van Schaick, 240.) Petit larceny is not mentioned in this act, but jurisdiction is given of misdemeanors, breaches of the peace, and other criminal offences under the degree of grand larceny ; and the Justices (one whereof to he of the quorum) are authorised to inflict corporal punishment, (not extending to life or, limb.) By an act of the same date, (id. 340, ibid. 241) the same jurisdiction is given to the Mayor, Deputy Mayor, Recorder and Aldermen, for the time being, or any three of them, in the city of New-Tork,—Bythe 3d sec*
The 1st section of the act for the relief of debtors, with respect to the imprisonment of their persons, which relieves from imprisonment for a fine, was first passed Feb. 13th, 1789. (2 Jones & Varick, 409. 2 Greenleaf, 231.) At first it extended to all persons, whether freeholders or not. In other respects it is still the same as when first enacted. By the act of the 24th March, 1801, it was confined to persons not being freeholders, (1 Kent k Radcliff, 290) and has so continued since that time.