158 N.Y.S. 949 | N.Y. App. Div. | 1916
The return is that the relator was held by a commitment of the County Court of Kings county, dated July 26, 1915, and the commitment annexed thereto shows that at a term of court on that day the relator, after conviction of a felony, namely, receiving stolen property as a second offense, had been sentenced to the State prison at Sing Sing for a term of five years and one month.
The relator traversed the return in that the part of the County Court wherein the relator was tried ceased and determined on the last day of June, 1915. This was to support his contention that the judge who held that part was powerless to impose the judgment of July 26, 1915. It appears that theretofore an application had been made by the relator to the County Court to correct the minutes, and that this application had been first referred by the court to the judge who held the said part in June, who thereupon stated that at the times in question he was regularly holding said part; that the term held in June had been adjourned and continued so as to include the days in question, embracing the said July 26,1915. Thereupon the said application in respect to correction of the minutes to show that the judge who had imposed the sentence on July 26, 1915, was not then holding the term of the court whereat the defendant had been convicted, was denied. Upon the traverse, the Special Term heard the said judge who had held the said part and the clerk thereof. I think that the Special Term was justified in its determination that there had been a continuance, and that the sentence was imposed at a term of the court, and at the same term thereof whereat the defendant had been tried and convicted. The presumption in favor of jurisdiction being one of fact may be rebutted, although when jurisdiction depends on the existence of a certain fact and the court had
The relator also contended that such judgment was invalid, in that it subjected the relator to double punishment and double imprisonment in violation of section 6 of article 1 of the State Constitution. On June 28, 1915, the court had imposed a sentence upon the relator in violation of the statutes that prescribed the punishment. Therefore, the court expunged the first sentence and imposed the sentence now under consideration. (See Matter of Cropsey v. Tiernan, 172 App. Div. 435, decided herewith, wherein we have discussed the power of the court in the premises.) I think that the first sentence was void. For the court had undertaken to sentence the relator for a term of one year in the jail (New York County Penitentiary), when it must have sentenced him to a term of five years in the State prison. The term was wrong in that it was less than the law prescribed, and the place was wrong in that it was not that which the law specifically prescribed. (Penal Law, §§ 1308, 1941.) In Ex parte Lange (18 Wall. 176) the court say: “It is no answer to this to say that the court had jurisdiction of the person of the prisoner, and of the offense under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in ,such case. If a justice of the peace, having jurisdiction to fine for a misdemeanor, and with the party charged properly before him, should render a judgment that
In fine, the court must have the power to render the judgment made by it. (See Knickerbocker Trust Co. v. O., C. & R. S. R. Co., 201 N. Y. 384.)
Many of the cases which are cited by the learned counsel for the relator show the fact that the court had imposed a second sentence after the defendant had suffered under the first sentence, which was legal and valid. Thus, in Ex parte Lange (supra) the court held that the original sentence — one year’s imprisonment and a fine, when the statute permitted only imprisonment or a fine—-was a valid judgment which had been executed by the payment of a fine. But Matter of Shaw (7 Ohio St. 81, 82) is cited as directly in point. Shaw was sentenced to one year’s imprisonment, while the statute required not less than three years’ imprisonment, but the court thought upon habeas corpus that the first sentence, though erroneous, was valid. This decision is strongly criticised in Black on Judgments {supra), and is likewise discussed in Freeman on Judgments (2d ed. § 625).
It appears that the relator did pass some days in the New York County Penitentiary, where he was taken after the first sentence. But this fact does not entitle the relator to a discharge from the sentence of July 26, 1915. (Matter of Vitali, 153 Mich. 514; People v. Farrell, 146 id. 264; McCormick v. State, 71 Neb. 505; 99 N. W. Rep. 237; United States v. Harman, 68 Fed. Rep. 472; People ex rel. Devoe v. Kelly, supra; Matter of Graves, 117 Fed. Rep. 798. See, too, Beale v. Com
But, even assuming that I am wrong in that the sentence was not void, but merely erroneous and voidable, as the relator contends, he was not entitled to relief upon habeas corpus, which is not a writ of error, “ cor other process of review,’” and, therefore, is not available “c if the judgment is merely erroneous.’” (People ex rel. Hubert v. Kaiser, 206 N. Y. 53, 54; People ex rel. Price v. Hayes, supra, 567.) The relator “may, on a writ of error, object that the punishment inflicted upon him is too great in its extent, or that it is different in form from what the law has prescribed.” (Kane v. People, 8 Wend. 211.) Bishop, in his new Criminal Procedure (Vol. 2 [2ded.], § 1410), says: “The habeas corpus is not a substitute for a writ of error, and on a judgment simply erroneous, but not void, it will not lie,” "etc., citing authorities.
I advise that the order be affirmed.
Stapleton, Mills, Rich and Putnam, JJ., concurred.
Order affirmed.