People ex rel. Evans v. McEwen

Learned, P. J. —Upon the return having been made to a writ of habeas corpus, the court is to examine into the facts alleged in the return (Sec. 2031). If there is no traverse of those facts, they must be taken as true (Matter of Decosta, 1 Park. C. R., 129; People ex rel. agt. Neilson, 16 Hun, 214). Therefore, in the present case we are to look at the return made to the writ, and not at the affidavits upon which the writ was obtained. Everything not admitted is expressly denied in the return. The return states that the superintendent holds the relator by virtue of a warrant, a copy of which is annexed, and by virtue of a judgment of conviction for the crime of assault in the third degree, by the recorder of Binghamton, etc. The relator insists that the recorder had not jurisdiction to try the charge before himself summarily, but must sit as a court of special sessions (chap. 291, Laws of 1867, tit. 5, sec. 7), and he insists that this trial was not before a court of special sessions. But the warrant expressly recites the holding of a court of special sessions and the trial of the relator at the same. Next the relator asserts that the recorder filed a certificate or record (see the section aforesaid and Code of Crim. Pro., sec. 724), and that such certificate shows that the recorder acted summarily and not as a court of special sessions. To this we have to say that the return does not set forth the certificate, and there is no admission that the certificate set forth in the petition is correct. Furthermore, on looking at section 7, above cited, the form is given which the certificate shall substantially have, when the recorder is sitting [112] as a court of special sessions or otherwise. That form is followed in the copy set forth in the petition. Next it is said that section 725, Code of Criminal Procedure, directs that the judgment he executed upon the sheriff, &c., receiving a copy of the certificate, and that the warrant under which the relator is held is not a copy of the certificate. Now it is pointed out in People ex rel. agt. Barber (89 N. Y., 460) that a prisoner who has been properly and legally sentenced to prison cannot be released simply because there is an imperfection in what is commonly called the mittimus; that if the prisoner is safely in the proper custody there is no office for a mittimus to perform. The return states that the prisoner was held by a judgment of conviction, &c. Now we are either to take that as true, in which case the prisoner is properly detained, or we must suppose that the certificate, of which a copy is attached to the petition, is assumed to be the certificate filed by the recorder. In that case we have seen that the form is substantially according to that set forth in section 7, above recited. One further objection is made. The certificate states that the prisoner pleaded guilty, and proceeds, “ whereupon said recorder, upon such conviction, did sentence,” &c., and the objection is taken that neither the certificate nor the warrant, after stating a plea of guilty, do in so many words say that the prisoner was convicted. The papers only mention the conviction by way of recital. We think that this objection is hypercritical. After a plea of guilty, there is nothing further for a court to do than to pronounce sentence. The plea of guilty is like the verdict of guilty (Code of Crim. Pro., 471). There is no duty in the court to “ convict,” but only to sentence. If the prisoner pleaded not guilty, and if he were tried without a jury, then the court would find him guilty or not guilty; but when he pleads guilty,, there is nothing for the court to find. To this effect is section 717, Code Criminal Procedure, “ when a defendant pleads guilty or is convicted either by the court or by a jury.” This shows that when he [113] pleads guilty it is not necessary that there should be any conviction. The subsequent section (722) gives a form which need only be followed substantially. We think the order appealed from should be reversed, and the prisoner remanded to the penitentiary.