
    The People of the State of New York ex rel. William Prince, Respondent, v. Joseph H. Brophy, Warden of Auburn State Prison, Auburn, New York, Defendant. The People of the State of New York, Appellant.
    Fourth Department,
    May 27, 1936.
    
      
      William Copeland Dodge, District Attorney New York County [Felix C. Benvenga, Assistant District Attorney, of counsel], for the appellant.
    
      William Prince, for the respondent in person.
   Per Curiam.

The appellant has raised the question in this case as to whether in a habeas corpus proceeding the relator may-attack the validity of the judgment of conviction against him where he has pleaded guilty to a crime for which he has not been directly indicted, a crime not included either necessarily within the definition of the crime for which he was indicted or within the facts alleged in the indictment. The question is not free from doubt but we have reached the conclusion that a conviction in this case was not within the jurisdiction of the court. (People ex rel. Battista v. Christian, 249 N. Y. 314; Matter of Dickson, 36 Nev. 94; 133 P. 393; Matter of Thomas, 12 Porto Rico, 350; Matter of Wilson, 114 U. S. 417; Matter of Bain, 121 id. 1, at p. 13; Matter of McClusky, 40 Fed. 71; Matter of Dela, 25 Nev. 346; 60 P. 217; Commonwealth v. Francies, 53 Penn. Super. Ct. 278; Matter of McVey, 50 Neb. 481; 70 N. W. 51.)

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.

Order affirmed, without costs.  