Hyperlawhypertext legal database People ex rel. Bedell v. Foster 116 N.Y.S. 530

← Cases

People ex rel. Bedell v. Foster

116 N.Y.S. 530 Court N.Y. App. Div. Decision date 1909-04-30 English

Delivered by RICH, J.

Contents

Majority

p. 530
PEOPLE ex rel. BEDELL v. FOSTER, Sheriff.
(Supreme Court, Appellate Division, Second Department.
April 30, 1909.)

Headnote

1. Criminal Law (§ 1208*)'— Sentence—Indeterminate Sentence.
Under the express provisions of Pen. Code, § 699, when the term of imprisonment of a male convict is fixed at one year or less, the court may direct imprisonment in a county penitentiary, instead of in a state prison; and, where a convict is sentenced to a county penitentiary under the section, an indeterminate sentence is not required, as section 687a, providing that persons never before convicted of a state prison offense, who are convicted of certain offenses and sentenced to a state prison, shall be sentenced under an indeterminate sentence, applies only to a convict “sentenced to a state prison.”
[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § .1208.*]
p. 531
2. Indictment and Information (§ 131[1] )—Joinder of Counts—Acts Constituting Different Offenses.
Where the grand jury had jurisdiction of a felony charged, its jurisdiction was not affected by the fact that the same acts also constituted a misdemeanor ; and, under Code Cr. Proc. § 279, it could charge the different crimes in different counts of the indictment.
[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 424; Dec. Dig. § 131.*]
3. Criminal Law (§ 93*) — Jurisdiction — Offense Arising out of Major Crime.
Where a court has jurisdiction of a major crime charged, its jurisdiction extends to any crime arising out of the same facts; and hence, having jurisdiction of grand larceny in the second degree, charged in one count of an indictment, it would have jurisdiction of a misdemeanor charged in another count, based upon willfully and unlawfully taking and carrying away the same property charged to have been stolen in the first count.
[Ed, Note.—For other cases, see Criminal Law, Cent. Dig. §§ 137-166; Dec. Dig. § 93.*]
4. Habeas Corpus (§ 17*)—Authority for Restraint.
The authority of a prison keeper for holding a convict is the certified copy of the entry of the judgment of conviction.
[Ed. Note.—For other cases, see Habeas Corpus, Cent Dig. § 13; Dec. Dig. § 17.*]
Appeal from Special Term, Nassau County.
Habeas corpus and certiorari by the People, on the relation of George W. Bedell, against Joseph H. Foster, Sheriff of Nassau County. Judgment of dismissal, and relator appeals.
Affirmed.
Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.
H. Willard Griffiths, for appellant.
Franklin A. Coles, for respondent.

Appellant is detained in the penitentiary of the county of Nassau, 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.

The first contention is based upon the assumption that it was 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,

p. 532
charges the crime of willfully 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 additional and different crime. Section 279, Code Cr. Proc. 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 , 103 N. Y. Supp. 358 .

The order must be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.