p. 83conviction was annexed to the petition, which shows that tha relator was charged with petit larceny, and that he “ thereupon •pleaded guilty, and having been thereupon tried and upon such trial duly convicted. It is adjudged that said Edward Gainanee be confined at the Albany County Penitentiary at hard labor for the term of one hundred and eighty days.”
It appeared by the affidavit filed by the relator in support of the petition that the petit larceny was not charged as a first offense. The final order discharging the relator stated that it was made “ on the grounds that said commitment was illegal and void.”
James R. Stevens, Jr., and Rollin B. Sanford, for the appellant.
John S. Wolfe, for the respondent.
The theory of the county judge seems to have been that the judgment was illegal and excessive because it included the provision “ at hard labor.” Section 171 of the Prison Law (Consol. Laws, chap. 43; Laws of 1909, chap. 47) provides that “ the superintendent of State prisons, the superintendents, managers and officials of all reformatories and penitentiaries in the State, shall, so far as practicable, cause all the prisoners in said institutions, who are physically capable thereof, to be employed at hard labor, for not to exceed eight hours of each day, other than Sundays and public holidays.”
It is evident, therefore, that the provision in the judgment of conviction for hard labor did not increase the punishment and was not in excess of the jurisdiction or power of the court. That such a provision cannot render the judgment void or be reviewed on habeas corpus is too plain a proposition to admit of argument. It may also be observed that the conviction was
p. 84valid and the relator was not entitled to be discharged because in the information the crime of petit larceny was not charged as a first offense. It was held in People v. Cook ( 45 Hun, 34 )’. that it was not essential to the jurisdiction of a court of Special Sessions in a ease of petit larceny that the information or the warrant should allege that the crime charged is a first offense. The same doctrine was asserted in People v. Johnston (
112 App. Div. 812 ), where Mr. Justice Chester said:
“ If it be a first offense in fact, the court has jurisdiction to try the case, ‘and it is to be deemed <a first offense unless the contrary is charged.” It follows that the order discharging the relator should be reversed, the writ dismissed and the relator remanded to the sheriff of Albany county, and the judgment of conviction; carried into effect.
All concurred, except Smith, P. J., not voting.
Order discharging relator reversed and writ dismissed, and relator remanded to custody of sheriff of Albany county, that the judgment of conviction may be carried into effect.