298 N.Y. 219 | NY | 1948
Lead Opinion
We have presented to us for our consideration a petition for a writ of habeas corpus verified in April, 1946, together with the writ and the minutes of the hearing held thereon. The relator was sentenced as a fourth offender, pursuant *221 to section 1942 of the Penal Law in June, 1942. The claim of the relator is that in September, 1925, at the time of the commission of the first of the four felonies of which he has been convicted, he was under the age of sixteen years and that therefore the County Court of Kings County was without jurisdiction to try or sentence him.
After the taking of testimony, which will later be quoted in full, Special Term sustained the writ and directed relator's return to Kings County for resentence as a third felony offender. The Appellate Division reversed as a matter of law. We think the reversal was correct for two reasons, first, because there was no evidence before the court to justify the sustaining of the writ, and second, because the age of the relator was found as a fact by the trial court and such finding was not reviewable by habeas corpus.
1. The relator was examined as a witness in his own behalf at a hearing on the writ on June 17, 1946. His testimony that he was then thirty-eight years of age completely disproved the allegations of his petition and established that he was more than sixteen years of age at the time of the commission of his first felony in September, 1925. The whole hearing consisted of nine questions and answers and it is as easy to quote them as to epitomize them. The hearing in full is as follows:
"By the Court:
Q. What is your name? A. Alphonse Harrison.
Q. What was your father's name? A. James Harrison.
Q. What was your mother's name? A. Mary Harrison.
Q. Do you know where you were born? A. At Tucson, Arizona."
Objection was made upon the ground that such testimony would be hearsay. There was no ruling and the examination continued.
"Q. Is that the information that you have that you were born in Tucson, Arizona? A. Yes, sir.
Q. What is your age? A. I am 38 now.
Q. Were you ever advised as to where your father was born? A. I could not say for sure, I was told he was born in Tucson.
Q. Were you ever told where your mother was born? A. She was born in New Orleans, Louisiana. *222
Q. What was your mother's maiden name? A. Mary Gant."
That was the oral testimony. By that testimony relator affirmatively established that, since he was then, on June 17, 1946, thirty-eight years of age, he was more than sixteen years of age in September, 1925, and there was no legal justification for sustaining the writ unless it may be found in the exhibits attached to the relator's petition.
The only facts properly established by those exhibits in any way germane to any issue presented were that in November, 1925, the relator swore that he was twenty-one years of age, that he had been born in New Orleans, Louisiana, and that his mother was living; that in June of 1942, the relator swore that he had been born in Tucson, Arizona, that he was thirty-two years of age and that his mother was dead; that in January, 1946, there was filed in the office of the Arizona State Department of Health, Division of Vital Statistics, a "DELAYED CERTIFICATE OF BIRTH" subscribed by Mary H. Gant who on November 13, 1945, in Louisiana swore that she was the mother of the registrant, Alphonse L. Harrison, who had been born on October 23, 1909, in Tucson, Arizona. The abstract of the supporting evidence attached to the certificate shows two documents. The first is a baptismal record from St. Dismas, The Good Thief Church at Dannemora, where relator was baptized on November 26, 1937. The other is a photostat application for social security account dated March 2,1942. The State Registrar of Arizona certified under date of January 22, 1942, that there was no prior certificate of birth of the registrant on record.
On that record there was no evidence to support the order sustaining the writ and it was properly reversed as a matter of law.
2. Before a prisoner may be sentenced to the New York State Reformatory at Elmira certain facts must be established. Section 2185 of the Penal Law reads as follows: "Sentence of malesbetween sixteen and thirty years of age. A male between the ages of sixteen and thirty, convicted of a felony, who has not theretofore been convicted of a crime punishable by imprisonment in a state prison, may, in the discretion of the trial court, be sentenced to imprisonment in the Elmira reformatory, to be there confined under the provisions *223 of law relating to that reformatory." Thus one of the facts to be found by the trial court is that the prisoner is "between the ages of sixteen and thirty". (Penal Law, § 2185). The relator has furnished us with his answers under oath to the trial court (McLAUGHLIN, J.) pursuant to the questioning required by section 485-a of the Code of Criminal Procedure. That section reads as follows:
"Examination of convict before sentence. It shall be the duty of the court in which any person shall be convicted of an offense punishable in a state prison, before passing the sentence therefor, to ascertain by the examination of such convict on oath, and in addition to such oath, by such other evidence as can be obtained, whether such convict had learned and practiced any mechanical trade, and in like manner such other facts tending to indicate the causes of the criminal character or conduct of such convict, as to the court shall seem proper and desirable, and the court shall direct the clerk of the court to enter such of the facts so ascertained, and such other facts as to the court shall seem proper and desirable, upon the minutes of the court, and said clerk shall include a copy thereof in the certified copy of the sentence of such convict which shall be delivered to the sheriff of the county in which such conviction shall be had." Among the answers so made by the relator to the court on November 23, 1925, were that he was twenty-one years of age and had previously been convicted of petit larceny in the same County Court and had served ninety days therefor. The trial court made a finding of fact under section 2185 of the Penal Law which was entered on the clerk's minutes as required by section 485-a of the Code of Criminal Procedure as follows: "The Court being satisfied that the said ALPHONSE HARRISON is 21 years of age and has not been previously convicted and sentenced for a felony; WHEREUPON it is ORDERED AND ADJUDGED by the Court, that the said ALPHONSE HARRISON for the felony aforesaid whereof he is convicted, be imprisoned in the New York State Reformatory at Elmira, there to be dealt with according to law."
Thus the relator's age was one of the facts upon which depended the jurisdiction of the court to act for there may be no *224
judgment of conviction without sentence. (People v. Harcq,
See, also, the cases collected in People v. Jones (38 N.Y.S.2d 207, at p. 211).
The general rule is stated as follows in 39 Corpus Juris Secundum, p. 456: "Where the court had general jurisdiction of the cause and the person, error in the determination of questions of law or fact on which its jurisdiction in the particular case depends is error in the exercise of jurisdiction, and, in accordance with the general rule, affords no ground for habeas corpus. This rule has been applied to findings as to the age, status, and domicile or residence of a person, and as to whether or not the offense was committed within the territorial jurisdiction of the court * * *."
It should be stressed that this is not a case where the petitioner "alleges in his petition facts sufficient, if established, to show that the judgment fails to satisfy the requirements of due process" (Matter of Morhous v. New YorkSupreme Court,
People ex rel. Jones v. Brophy (
The order appealed from should be affirmed.
Concurrence Opinion
I agree that this is not a case for habeas corpus, but, since I reach that conclusion by a road *226 different from that taken by Judge CONWAY, I would indicate my course.
Both by history (Matter of Morhous v. New York SupremeCourt,
It is true, as urged, that this court has sanctioned the use of the writ where a sentence has been imposed "for a term longer than authorized by statute". (See People ex rel. Carollo v.Brophy,
I am impelled, however, to write further because of the fears expressed in the dissenting opinion (p. 235) that "affirmance here, read with the Hogan case (
I do not so understand either our present determination or the decision in that Hogan case. (Matter of Hogan v. Court ofGeneral Sessions,
In my view, denial of habeas corpus does not necessarily mean the denial of all remedy in a proper case. As this court not long ago observed, and in a very similar setting, "A remedy there must be. The approach to it must be by the only visible route — by motions addressed to the sentencing court." (Matter of Hogan v.New York Supreme Court,
In short, it is my opinion that, if ever a second or fourth felony offender wishes to assert the invalidity of a prior conviction — ascribed to an error of fact not apparent on the face of the record — he must do so by motion in the nature of a *228
writ of error coram nobis in the court where he was tried. Only if he is successful in that attack, may he thereafter move to have his subsequent sentence corrected. (See People ex rel.Sloane v. Lawes,
No exhaustive discussion is necessary to establish the propriety of coram nobis, at least in certain instances, to vacate a judgment convicting a juvenile offender of a felony. From time immemorial that remedy was employed to call up facts unknown to the court at the time of judgment — facts which affected the validity and regularity of the judgment itself, facts which, if known, would have precluded the judgment rendered. There can, of course, be no doubt that a court would not have adjudged a defendant guilty of a felony, or, for that matter, of any non-capital crime, had it known that he was under sixteen years of age when he committed the act for which he was being tried; in a very real sense, that was a fact which, if known, would have precluded the judgment rendered. (Penal Law, § 2186; see, e.g., People v. Murch,
It may well be that if a defendant knew, when tried, that he was under sixteen but either concealed that fact or lied about it — or if the issue of age was adjudicated upon the trial (seeMatter of Hogan v. Court of General Sessions, supra, 296 N.Y. at p. 8) — coram nobis may not be used to attack the judgment of conviction. But if, on the other hand, a defendant was unaware that he was under age — and his asserted nonage was *229
not put in issue — reason and fairness demand that he be privileged to apprise the court of that fact so that it might take appropriate corrective action. And, as I have indicated, it is my belief that the Hogan case does not preclude resort tocoram nobis by one who asserts that he was a juvenile when he committed the alleged felony of which he was initially convicted,provided that he can also allege and prove that, for some justifiable reason, he was unable at the trial to make known his true age. (Cf., e.g., Sanders v. State,
The order appealed from should be affirmed.
Dissenting Opinion
Relator-appellant, having been four times found guilty of felonies in this State (in 1925, 1928, 1932 and 1942), was, as a consequence of the last of those convictions, sentenced, as a fourth offender, to serve a prison term of from twenty years to life. In 1946, he brought this habeas corpus proceeding, alleging that on the date (September 22, 1925) of the commission of the offense of which he was first convicted, he was in fact not yet sixteen years of age. It is his contention here, and an Arizona birth certificate attached to his petition and presented to Special Term in this proceeding purports to show, and Special Term has herein made a finding, that he was born on October 23, 1909. On the return of the writ there was a hearing and testimony was taken, at the close of which the Special Term Justice held, as fact, that relator's 1925 offense had been committed when relator was only fifteen years old. Accordingly, the writ was sustained. After certain other procedural steps to which it is not necessary to refer, Special Term made an order sending relator back to the court which had sentenced him as a fourth offender in 1942, to be resentenced as a third offender.
The People appealed, from the order sustaining the writ and ordering resentence, to the Appellate Division, Third *230
Department, which reversed the order on the law and dismissed the writ. The memorandum opinion of the Appellate Division pointed out that at the time of the first criminal judgment against him, relator had given his age as twenty-one, and held that since (according to the Appellate Division) the question of fact (as to his age) "was within the jurisdiction of and adjudicated in the court of original jurisdiction", it could not be reviewed or litigated in a habeas corpus proceeding. (
So far as we can discover, no issue as to relator's date of birth had been raised, litigated or decided at his 1925 trial in the County Court of Kings County. So far as appears, there was no mention of his age in those County Court proceedings until November 23, 1925, four weeks after the jury had found him guilty. On that date, when relator came up for sentence he was, apparently, asked his age (by whom it does not appear) and one of the indorsements then made on the back of the indictment says this: "Age: 21." Presumably, that, with other information set down when relator's "pedigree" was taken, was elicited from relator, but, even so, the process was not — indeed, had no resemblance to — the trial of an issue of fact. It was a mere gathering of data, for the court's information in sentencing and for statistical purposes (Code Crim. Pro., § 485-a; see Peopleex rel. Shepherd v. Martin,
It is argued that this case is not one for habeas corpus since appellant's latest sentence as a fourth offender, in 1942, on which sentence he is now being held, was rendered by a court which had at that time jurisdiction of his person and of the charge against him (People ex rel. Carr v. Martin,
The suggestion is made that appellant should have moved in the County Court of Kings County for relief, by making a so-called"coram nobis" type application to set aside the illegal 1925 conviction. There are two answers to that suggestion. First, even though such a motion was a permissible procedure, it does not follow that the great writ of habeas corpus was not relator's to employ instead, if he so desired. Another sufficient answer is that there is more than a little doubt, under Matter of Hogan
v. Court of General Sessions (
The discussion of facts in the opinion for affirmance seems to suggest that relator's proof is too meager or suspicious to justify relief. But he did make out a prima facie case (see Penal Law, § 817, as to birth certificate), and the only material fact was duly found in his favor, and so the fact inquiry is closed, as far as we are presently concerned.
The jurisdiction, or lack of it, of the 1925 court depended on the actual facts, and no false or mistaken statements by the defendant could confer jurisdiction. This is a question of subject-matter jurisdiction, which cannot accrue to a court by consent, waiver or mistake, but must be conferred by Constitution or statute. It follows that any holding herein that habeas corpus is not allowable to this relator must necessarily mean that the writ cannot, as matter of law, issue in the case of any underage defendant, who, despite the express prohibitions of our statutes, has been indicted, tried and convicted for felony, but who, through youth and ignorance, has failed to take an appeal from that totally void judgment of conviction. Since such a judgment is void for lack of jurisdiction, no appeal therefrom was necessary to keep this relator's rights alive. And illusory, indeed, is the remedy of an appeal for a defendant who is so ignorant of his true age, or of the protection the law affords him at that age, that he fails to plead his nonage, at the trial. The strong and positive public policy of this State is that those under sixteen years of age cannot be convicted of crimes, and that the courts (other than children's courts) are wholly without jurisdiction to try or *235
sentence such persons. An equally strong and positive, but much older, public policy of this State says that the writ of habeas corpus, the great writ of liberty, is ready at hand to redress such wrongs. Yet an affirmance here, read with the Hogan case (
The order of the Appellate Division should be reversed, with costs and the proceeding remitted to the Appellate Division for determination by it upon the question of fact (Civ. Prac. Act, § 606).
THACHER and DYE, JJ., concur with CONWAY, J.; FULD, J., concurs in separate opinion; DESMOND, J., dissents in opinion in which LOUGHRAN, Ch. J., and LEWIS, J., concur.
Order affirmed.