People ex rel. Dauchy v. Pitts

103 N.Y.S. 258 | N.Y. App. Div. | 1907

Sewell, J.:

The relator sued out a writ of habeas corpus, claiming to be illegally deprived of his liberty by the custodian of the Albany County Penitentiary.

It appears that he was held under a judgment of the Otsego .County Court, which recites that the defendant was duly indicted for the crime of assault in the second degree; that he was duly arraigned and plead not guilty; that he was duly tried by the court and a jury, and convicted upon such trial of the crime of assault in. the third degree;, that the district attorney moved for judgment; that the defendant waived his right to delay,, and requested to be sentenced at once, and thereupon the said Fred L. Dauchy was “ by the law and the court, on this 7th day of August, sentenced to be confined in the Albany County Penitentiary for the term of nine months.”

The recorder, after hearing the relator, declined to discharge him, and remanded him to the custody of the custodian of the Albany County Penitentiary, to be confined therein in accordance with the terms of his sentence, and dismissed the writ.

The relator claims that he is not detained by virtue of a proper warrant of commitment, in that the paper purporting to be a copy of the record of the Otsego County Court is unsigned, and-does not conform to the requirements of sections 486 and 487 of the Code of Criminal Procedure.

There is no provision requiring a warrant of commitment to be signed by the judge or justice pronouncing judgment, or by a clerk of the court, on the trial of such an indictment. Section 486 of the Code of Criminal Procedure provides that the authority for the. execution of a judgment, except of death, is a certified copy of the entry thereof upon the minutes; that it must be .furnished to the officer whose duty it is to execute the judgment, and.that no other warrant or authority is necessary to justify or require its execution.

Section 489 provides that “if the judgment be imprisonment, except in a county jail, the sheriff must deliver a copy of the entry of the judgment upon the minutes of the court, together with the body of the defendant, to the keeper of the prison in which the defendant is to be imprisoned.” The judgment referred to in those sections is the sentence of the court, and a certified copy of it as entered on the minutes is all that is required.

As was said in People ex rel. Trainor v. Baker (89 N. Y. 460): “ The. relator was not detained or required to be detained by virtue of any'warrant. He was detained by . virtue of the judgment of the court, and that judgment was a sufficient authority for his detention. The warrant of commitment is simply an authority and direction to the sheriff or other officer to convey the prisoner to the penitentiary. That needs not necessarily to be left with the keeper. If he has no other evidence of his authority to detain the prisoner, he should have that. But if the officer who brings a prisoner to the penitentiary furnished the, keeper with a certified copy of the judgment of the court, then that is sufficient evidence of the keeper’s authority, and he needs to have no other.” (People v. Bradner, 107 N. Y. 4.)

I think the order of the recorder should be affirmed.

All concurred.

Order affirmed.