109 N.Y.S. 531 | N.Y. App. Div. | 1908
The order from which this appeal was taken was made upon the return of a writ of habeas corpus issued at the instance of the relator and directed'to the keeper of the Erie County Penitentiary. A demurrer was interposed by the relator to the return. While the order does not in terms sustain the demurrer, such was its effect since it discharged the relator from imprisonment.
The relator was charged with “ openly outraging public decency in violation of section 675 of the Penal Code,” and was convicted of that offense upon his plea of guilty, and sentenced to imprisonment in the Erie County Penitentiary for one hundred and eighty days, as appears by the certified copy of the certificate of conviction upon which the relator was imprisoned, and which is made a part of the return to the writ of habeas corpus. The petition for the writ shows the proceedings before the justice of the peace, and includes copies of the information and depositions, warrant and docket of the magistrate. The proceedings were had before a justice of the peace of Chautauqua county, where the offense was committed.
It is also urged upon the part of the relator that the proceedings before the magistrate, as well as the certificate of conviction, are defective in failing to show that the relator was charged with or convicted of any specific criminal offense.
We think the objections are groundless. Part 5 of the Code of Criminal Procedure relates to Courts of Special Sessions and Police Courts, and includes the sections hereinafter referred to. The magistrate before whom the relator was convicted was acting as a Court of Special Sessions. Section 699 of the Code of Criminal Procedure provides that when the defendant is brought before the magistrate, the charge against him must be distinctly read to him, and he must be required to plead thereto. In this case it appears he was informed of the charge., Section 700 provides that the defendant may plead the same pleas as upon an indictment as provided in section 332; that his plea must be oral and entered upon the minutes of the court. That was done in this case. Section 717 provides that when the defendant pleads guilty or is convicted, either by court or jury, the court must render judgment thereon of fine or imprisonment, or both; that the fine cannot exceed fifty dollars or the imprisonment six months. In this case the imprisonment was for one hundred and eighty days, and no fine was imposed. Section 721 provides that when a conviction is had the court must make and sign a certificate substantially in form as prescribed in that section, briefly designating the offense. The original certificate is required to be filed in the office of the county clerk within twenty days after the conviction, and the certificate or certified copy thereof is conclusive evidence of the facts stated therein. The judgment must be executed by the sheriff of the county, or a constable, marshal or policeman of the city, village or town in which the conviction is had, upon receiving a copy of the certificate, certified by the court or county clerk. (Code Crim. Proc. §§ 723-725.)
It is, however, contended on behalf of the relator that the commitment itself (which is a certified copy of the certificate of conviction) is defective. The precise alleged defect pointed out is that it omits to state the particular act or acts that the relator committed which openly outraged public decency ; that even if it was permissible to state the offense generally, it should have been supplemented with the further statement that such an act is one for which no other punishment is expressly provided by the Penal Code, as is stated in section 675 of the Penal Code. It does not seem to me that the objection is well taken, since it is stated in the certificate that the willful and wrongful act which openly outraged public decency, and of which the relator was convicted, is in violation of section 675 of the Penal Code. That states an offense with sufficient definiteness and precision to comply with the provisions of section 721 of the Code of Criminal Procedure, which only requires that the offense shall be briefly designated. (People ex rel. Ryan v. Webster, 86 Hun, 68; People ex rel. Forbes v. Markell, 92 id. 286; People ex rel. Bidwell v. Pitts, 111 App. Div. 319.)
All concurred.
Order reversed, writ of habeas corpus quashed, and relator remanded to the custody of the keeper of the Erie County Penitentiary to serve the balance of his term.