Majority
p. 342SUPREME COURT-APPELLATE DIV. — SECOND DEPT., April, 1913. THE PEOPLE v. HARRY S. BRETTON.
Headnote
(1.) Correction of Judgment by Appellate Court.The Appellate Division has power to correct an erroneous judgment of conviction, when same has been entered upon a lawful verdict, and where defendant has pleaded guilty to grand larceny, second degree, as a first offense, and it having developed upon interrogatories thereafter put to him that he has been convicted four times for a felony, the trial court has no power to impose a life sentence.
(2.) Same — Motion fob a reargument.
A motion for a reargument based upon the case of People v. Bauer, 37 Hun 407 , denied, and held that the latter case, so far as it conflicts with the case of People v. Griffin, 27 Hun 595 , should not be followed.
(See s. e., 26 N. Y. Crim., 175 .)
Motion for reargument.
We adhere to our judgment in this case reported in 144 App. Div. 282 . We followed People v. Griffin ( 27 Hun, 595 ), decided by the General Term in this department, opinion by Cullen, J., with whom Barnard, P. J., and Dykman, J., concurred. We think that People v. Bauer ( 37 Hun, 407 , 3 N. Y. Crim. 434 ), so far as it conflicts with People v. Griffin, should not be followed. The sole authority cited in People v. Bauer (supra) is People v. Bork ( 96 N. Y. 188 , 201, 2 N. Y. Crim. 177 ). The decision in that case upon the question presented in the case at bar, in Griffin’s Case and in Bauer’s Case (supra) rests upon a construction of chapter 226 of the Laws of 1863, which, as the Court of Appeals in
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Bork’s Case (supra) say, provides that the court to which the record is remitted is to pass such sentence as the appellate court shall direct, and this provision, the court further say, does not require the appellate court “ to fix the time of imprisonment, or to itself exercise a discretion in respect to punishment given by the statute,” and that the appellate court conforms to the statute when it “ points out the law providing for the punishment and directs the court below to sentence thereunder.” The court also pointed out that the statute of 1863 had never been repealed in terms, and held that it was continued in force as a rule of procedure in respect to actions pending when the Code of Criminal Procedure took effect. Bork was convicted in June, 1881, and the said Code took effect in September, 1881. (Code Crim. Proc. § 963.) Thus it appears that Bork’s case was not an authority for the decision in People v. Bauer (supra), for Bauer was indicted in 1885. Our judgment in this case, reported in 144) App. Div. 282, has been followed, with citation thereof and of People v. Griffin (supra), by this court in its First Department in People v. Scheuren ( 148 App. Div. 324 , 26 N. Y. Crim. 175 ). The motion for reargument is denied. Burr, Thomas, Carr and B,ich, JJ., concurred. Motion for reargument denied.
Cases cited
- People v. Bretton 144 App. Div. 282 p. 342, p. 343
- People v. Bork 96 N. Y. 188 at 201, 2 p. 342
- People v. Scheuren 148 App. Div. 324 p. 343