People ex rel. Dawkins v. Frost — 23 N.Y. Crim. 111

Majority

p. 111

SUPREME COURT—APP. DIV.—SECOND DEPT.

Dec. 30, 1908.

THE PEOPLE ex rel. GEORGE DAWKINS v. JESSE D. FROST.

(129 App. Div. 498.)

Headnote

(1) . Certiorari Abolished Except as to Contempt.

The writ of certiorari to review a criminal case, save a criminal contempt of court, is abolished, the remedy being by appeal.

(2) . Habeas Corpus.

One detained by virtue of a final judgment of a competent tribunal of criminal or civil jurisdiction is not entitled to habeas corpus to inquire into the cause of the detention.

(3) . Penal Code 506—Burglary and Grand Larceny.

By virtue of section 506 of the Penal Code a person who enters a building under such circumstances as to constitute burglary in any degree and commits a crime therein is punishable for that crime as well as for the burglary, under separate Or under the same indictment.

(4) . Same—Sentence for, When Charged in Same Indictment.

On conviction for burglary and grand larceny, charged in the same indictment, an indeterminate sentence for both crimes may be imposed, the second imprisonment to commence upon the termination of the first.

And when the imprisonment under the first sentence has not expired, an application for a writ to inquire into the validity of the imprisonment is premature.

Appeal by the relator, George Dawkins, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of May, 1908, dismissing a writ of certiorari to the agent and warden of the State prison at Sing Sing, to inquire

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into the cause of detention of the relator and remanding him .to custody.

Edward J. Reilly, for the appellant.

Peter P. Smith (John F. Clarke with him on the brief), for the respondent.

There was a single indictment with two counts, one for burglary in the third degree and one for grand larceny in the second degree. The judgment was guilty upon both counts as charged in the indictment. The court sentenced the relator to be imprisoned for the burglary in the said prison under an indeterminate sentence, the maximum to be four years and five months and the minimum four years, and for the grand larceny under an indeterminate sentence, the maximum to be three years and one month and the minimum three years, the second sentence to commence immediately upon the termination of the first.

The writ of certiorari to review a criminal case, save criminal contempt of court, is abolished; the remedy is appeal. (Code Crim. Proc., § 515; Code Civ. Proc., § 2148.) A person is not entitled to writs either of habeas corpus or certiorari to inquire into the cause of his detention when he is detained by virtue of a final judgment of a competent tribunal of civil or criminal jurisdiction. (Code Civ. Proc. §§ 2016-2019.)

Section 506 of the Penal Code provides as follows: “A person who, having entered a. building under such circumstances as to 'constitute burglary in any degree, commits any crime therein, is punishable therefor, as well as for the burglary; and may be prosecuted for each crime, separately, or in the same indictment.” We may glean from the indictment, and indeed it is not disputed, that it was laid pursuant to this section. The

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sentence under which the defendant is now serving was valid (Penal Code, §§ 507, 687a), and it has not expired. Hence the application for a writ to inquire under article 3 of title 2 of chapter 16 of the Code of Civil Procedure was premature. People ex rel. Bedell v. Kinney, 24 App. Div. 309 , and authorities cited; People ex rel. Trainor v. Baker, 89 N. Y. 460 .

The appeal is dismissed.

Woodward, Hooker, Gaynor and Miller, JJ., concurred.

Appeal dismissed.'

Cases cited

People ex rel. Trainor v. Baker 89 N. Y. 460 N.Y. 1882-06-30 p. 113