People ex rel. Bedell v. Foster — 23 N.Y. Crim. 373

Majority

p. 373

SUPREME COURT—APP. DIV.—SECOND DEPT.,

April 30, 1909.

THE PEOPLE ex rel. GEORGE W. BEDELL v. JOSEPH H. FOSTER.

(132 App. Div. 116.)

Headnote

(1) . Imprisonment in County Penitentiary—Penal Code, Sections. 699-687a.

By virtue of section 699 of the Penal Code, when the term of imprisonment of a male convict for felony is fixed at one year or less,, he may be committed to a county penitentiary instead of a State prison. The court is not required to sentence him to a State prison on an indeterminate sentence pursuant to section 687a of the Penal Code.

(2) . Grand Jury—Jurisdiction of Minor Crimes Under Indictment Charging Felony.

The grand jury has jurisdiction of a felony although the indictment in a second count alleges the same facts as a misdemeanor; the court having gained jurisdiction of the major crime has jurisdiction of any other crimes arising out of the same facts.

(3) . Habeas Corpus—Defects in Conviction.

One sentenced to imprisonment is not entitled to release on habeas corpus where the record does not show the defects alleged to exist in. the certificate of conviction.

(4) . Same.

The authority for holding a criminal is the certified copy of the entry of the judgment of conviction.

Appeal by the relator, George W. Bedell, from an order of the Supreme Court, made at Kings County Special Term, and entered in the office of the clerk of the county of Nassau on the 8th day of January, 1909, dismissing writs of habeas corpus and •certiorari.

II. Willard Griffiths, for the appellant.

p. 374

Franklin A. Coles, for the respondent.

Appellant is detained in the penitentiary of the county of New York under a sentence for one year upon a judgment of conviction for grand larceny in the second degree. He avers that he is imprisoned illegally in that the sentence pronounced against him is contrary to law; that the court was without jurisdiction to try him, and that the warrant or order under which he is imprisoned does not conform to the judgment of conviction.

i The first contention is based upon the assumption that it’ w-as ■obligatory upon the court to sentence him to imprisonment in a State prison under the provisions of section 687a of the Penal ‘Code. This assumption is erroneous. Under the provisions of section 699 of the Penal Code authority is vested in the court, when the term of imprisonment of a male convict for felony is fixed at one year or less, to direct imprisonment in a county penitentiary instead of in a State prison, and section 687a applies only to a convict “sentenced to a State prison.”

The contention of want of jurisdiction is predicated upon the fact that the indictment contains two counts: the first charges grand larceny in the second degree; the second, after averring, the same facts, charges the crime of wilfully and unlawfully taking and carrying away the same property which the first count charged him with having stolen. The crime charged in the first count is a felony; in the second a misdemeanor. It is argued that in the absence of a certificate under the provisions of section 57 of the Code of Criminal Procedure the Supreme Court was without jurisdiction to inquire into the matter, and that the jurisdiction of the grand jury was limited by that of the court of which it is an appendage. This contention is without merit. The grand jury had jurisdiction of the felony charged, notwithstanding the same facts might constitute an ad

p. 375

ditional and different crime. Code Grim. Pro. § 279. Having jurisdiction of the major crime, the court had jurisdiction of any crime arising out of the same facts.

Under the third assignment of error it is contended that the minutes of the trial court show that the defendant was convicted of both crimes charged in the indictment, while the certificate of conviction recites grand larceny in the second degree. It is sufficient answer to this contention to say that this does not appear by the record before us. The authority for holding the defendant is the certified copy of the entry of the judgment of conviction. People ex rel. Trainor v. Baker, 89 N. Y. 466 ; People ex rel. Dauchy v. Pitts, 118 App. Div. 457 .

The order must be affirmed.

Woodward, Jerks, Gavkor and Burr, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.