The People, Ex Rel. v. . Kelly

Danforth, J. After conviction at the Otsego Sessions of the crime of assault in the third degree, the relator was sentenced to be imprisoned at hard labor in state prison, for the term of one year. He was afterward brought before the county judge upon habeas corpus, and on return made by the sheriff that the relator was in custody under this judgment of conviction, he was remanded, and the sheriff directed to carry out the judgment of conviction and sentence. Upon appeal to the General Term, of the Supreme Court, the order of the county judge was affirmed, and it was further ordered that the original judgment rendered by the court of Sessions be carried into execution. The court below was of opinion that the sentence was without authority of law and void, that the offense was a misdemeanor and punishable only by imprisonment in a penitentiary or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both, as provided by section 15, of the Penal Code. In this conclusion we concur. But as the court of Sessions exceeded its jurisdiction, its *438 judgment cannot be enforced. It follows therefore, that the order of the county judge, and the judgment of the General Term, so far as they direct the judgment of the court of Sessions to be carried into effect, should be reversed. But the conviction is still valid, and the prisoner not entitled to his discharge. He should be remanded to the sheriff of Otsego county, in order that the court of Sessions may deal with him according to law. People ex rel. Bork v. Gilbert and People v. Bork, 2 N. Y. Crim. Rep. 177. So far, therefore, as the order of the county judge directs the prisoner to be remanded to the custody of the sheriff it is right, as is also the judgment of the General Term, so far as it affirms such direction, and to that extent they should be affirmed. All concur, except Rapallo, J., absent. Note.—As to the general subject of erroneous and void sentences, see an exhaustive article on “ Void Sentences,” by Seymour D. Thompson, in 4 Crim. Law Mag. 797.