People ex rel. Hunt v. Markell

It is claimed by the relator’s attorneys that the certificate of conviction is insufficient in that with other things it does not state the person from whom the property was taken, and also fails to specify the articles stolen.

Section 721 of the Code of Criminal Procedure, requires that a certificate of conviction of a Court of Special Sessions must. he substantially in the .form set forth in that section, and requires with other things that it briefly designate the offense. Such

The relator’s attorneys rely upon the Brown case decided by Mr. Justice Hiscock. The certificate of conviction in that case was very loosely drawn; and with other objections raised by the attorneys for the relator that it did not state the date of the offense, nor was it in any manner indicated. The learned justice discharged the relator upon the ground of .the failure to specify the dates of the offense. The statement of the learned justice of the other facts in the case, shows- the greater necessity for a specific statement of the date. That case only decides that “the date of an offense is one of the essential particulars of the -description thereof required to be inserted in such a certificate.” In this case the place of the commission of the offense and the date are both set forth: • “ The above-named defendant was before said recorder charged with petit larceny in said city on the 25th day of September, 1897.” I think, while the specification of the offense., might well be more specific, that sufficient appears to give the recorder jurisdiction of the person and of the offense. Bennac v. People, 4 Barb. 31 ; Case of Twelve Commitments, 19 Abb. Pr. 394 ,401; People v. Johnson, 46 Hun, 668 ; affirmed, 110 N. Y. 134 ; People v. West, 106 id. 293; People v. King, 110 id. 418.

The principal difficulty in cases- of this character, in which -the certificate of conviction is somewhat vague, is whether the offense is described with that degree of certainty that the defendant may plead the judgment in bar of another prosecution for the same offense.

I think the difficulty in this case, in respect to proving, upon a-possible subsequent trial for the same offense, this conviction,, is. purely imaginary. The. test laid down by Mr. Bishop is as follows: “ Whether if that' which is set out in .a second indictment had been proved under the first there could have been a conviction; when there could, the second cannot be maintained; when there ciould not, it can be.” 1 Bish. Cr. Law (8th ed.), § 1052, subd. 2. Where a defendant relies upon an adjudication of the matters in controversy in a former suit, he is not confined to the

The plea of a former acquittal or conviction is a plea of a mixed nature, consisting partly of matters of record and partly of matters of fact. The matters of fact are the averment of the identity of the ofíense and of the person, and evidence is admissible to show that, in fact, the crimes are the same. Clem v. State, 42 Ind. 420 , 423; State v. Maxwell, 51 Iowa, 314 ; People v. Cramer, 5 Park. Crim. 171, 178; Abbott’s Trial Brief Criminal Cases, § 572, and cases there cited; Freeman on Judgments,'! 273. The plea of a former conviction is a good plea in bar, however' irregular the proceedings before the justice may have been. State v. George, 53 Ind. 434 ; Brinkman v. State, 57 id. 76. The last case cited holds that the defendant is entitled to an acquittal upon the ground of a former acquittal'or conviction, if he shows his case has been previously Submitted to a court or jury that might have convicted or acquitted him. Bryant v. State, 72 Ind. 400 . The pleas of a-former acquittal or a former conviction are favored pleas in this country. Baysinger v. State, 77 Ala. 60 .

The only question, upon the return of a writ of habeas corpus to inquire the cause of imprisonment of one detained under an apparently valid legal process, is whether the court has jurisdiction to try the relator. The merits of the conviction are not open for review. People ex rel. Tweed v. Liscomb, 60 N. Y. 570 ; People ex rel. Catlin v. Neilson, 16 Hun, 214 ; People ex rel. Forbes v. Markell, 92 id. 286 .

For the reasons herétofore given the relator must he remanded and the writ discharged.

Eelator remanded and the writ discharged.