
    Supreme Court—Appellate Division—Third Department.
    June, 1905.
    MATTER OF APPLICATION OF WILLIAM B. BARTHOLOMEW, RESPONDENT, FOR WRIT OF HABEAS CORPUS.
    
    (106 App. Div. 371.)
    1. Judgment of Conviction in County Court.
    A judgment of conviction rendered by the County Court, which does not state that the indictment under which defendant was convicted was found in that court, or that, if found in the Supreme Court, it was transferred by that court to the County Court, but which does state that defendant was “ duly indicted ” and was “ duly tried ” will, in the absence of affirmative evidence to the contrary, be deemed to have been properly rendered.
    2. Same—Grim. Proc., Sec. 485.
    A judgment of conviction which states that the defendant was convicted of assault in the third degree, sufficiently states the offense within the meaning of section 485 of the Code of Criminal Procedure, which requires the judgment of conviction to state briefly the offense for which the conviction has been had.
    Appeal by the People of the State of New York from an order made by the recorder of the city of Albany, New York, on the return of a writ of habeas corpus, and entered in the office of the Olerk of the county of Albany on the 21th day of December, 1904, discharging the petitioner, William B. Bartholomew, from the custody of the Albany County Penitentiary.
    George M. Palmer, E. A. Dox and George Addington, for the appellant.
    Henry Hirschfeld and Henry E. Stern, for the respondent.
    
      
       Note.—This opinion is to be read in connection with the Bidwell and Cook opinions, which immediately follow it.
    
   Houghton, J.:

The respondent, Bartholomew, was indicted by the grand jury of- the county of Schoharie for the crime of assault in the second degree. He was arraigned and plead not guilty, and upon trial in the County Court of that county he was convicted by the jury of assault in the third degree on the 5th day of December, 1904, and sentenced to be imprisoned in the Albany County Penitentiary for the term of one year.

A certified copy of the judgment of cenviction was delivered to the sheriff of the county, who, under it, delivered the respondent to the keeper of the Albany County Penitentiary, lodging such copy with him, as authority for the prisoner’s- detention, pursuant to the provisions of section 486 of the Code of Criminal Procedure.

On the 21st day of December, 1904, Bartholomew presented his petition to the recorder of the city of Albany, asking for a writ of habeas corpus to inquire into1 the legality of his imprisonment, alleging that the judgment under which he was imprisoned and restrained of his liberty was null and void, because it did'not properly state the crime for which the alleged conviction was had, and further that the judgment did not show that the court pronouncing the judgment had any jurisdiction to try or sentence him. A hearing was had, and on the twenty-third day of December the respondent was discharged from said penitentiary and from any further imprisonment by virtue of the judgment rendered against him.

The propriety of this order is the question involved. The judgment of conviction has a caption stating that it is made at a. regular term of the County Court of the county of Schoharie at which the county judge presided, and recites that the respondent was duly indicted by the grand jury of that county for assault in the second degree, and was duly arraigned and plead not guilty, and having been duly tried, was convicted by a jury of assault in the third degree. Section- 11 of the Code of Criminal Procedure enumerates County Courts, in counties other than in the- county of Hew York, as one of the courts having original jurisdiction in criminal actions, and section 39 of the same Code, amongst other things, provides that County Courts shall have jurisdiction to inquire by the intervention of grand juries of all crimes committed or triable in the county, and to try and determine indictments found therein or sent thereto by the Supreme Court.

It does not appear by the judgment whether the indictment against the respondent was found in the County Court or in the Supreme Court. If found in the County Court, the County Court had jurisdiction to try it; if found in the Supreme Court it had jurisdiction to try upon the indictment being transferred to it. The County Court having jurisdiction, and it being recited that the respondent was duly indicted and tried, in the absence of anything to the contrary, it must be assumed that the respondent was properly indicted and properly tried and convicted.

The principal question presented relates to whether the ■judgment of conviction, which is the process by which the respondent was held in custody, so states the offense for which he was convicted as to satisfy the requirements of section 485 of the Code of Criminal Procedure.

That section provides that a judgment upon conviction shall state “briefly the offense for which the conviction has been had.” The judgment of conviction herein states that the respondent was duly tried and convicted by a jury of assault in the third degree. Assault in the third degree is- the name of a crime defined in section 219 of the Penal Code, and was formerly commonly known as the crime of assault and battery. The name of the crime used in the judgment is the name used by the Penal Code. Under an indictment for assault in the second degree it was proper for the jury to convict of a lesser degree of the same crime. (Penal Code, § 35.) Even in the commitment of a magistrate a statement of the crime, according to its statutory definition, is sufficient. (People ex rel. Loughlin v. Finn, 87 N. Y. 533; People v. Johnson, 110 id. 134; People ex rel. Allen v. Hagan, 170 id. 50; 16 N. Y. Crim. 309.) The difficulty with the commitment in the latter case was that it stated simply a violation of a certain section of the Penal Code which might have been violated in many different ways, the particular way charged not having been pointed out. Even before the Code of Criminal Procedure a bench warrant was held good which recited only that the relator stood indicted for contempt.” (People ex rel. Sherwin v. Head, 92 N. Y. 415; 1 N. Y. Crim. 417.) In People ex rel. Trainor v. Baker (89 N. Y. 460), the judgment of conviction recited that the relator had been convicted for an assault and resisting an! officer*,” and sentenced to imprisonment for one year and to pay a fine of $500.00. The court held that the judgment was good as reciting a simple assault and battery at least, and that the relator could not be discharged until the expiration of his sentence of imprisonment, which was the limit of the punishment for that crime.

We think the judgment contained a sufficient description of the offense for which the relator was convicted, and that his discharge from custody was unauthorized.

The order should be reversed and the writ of habeas corpus quashed and the relator remanded to the Albany County Penitentiary, there to serve the balance of his sentence.

All concurred.

• Order reversed and writ of habeas corpus quashed and relator remanded to the Albany County Penitentiary, there to serve the balance of his sentence.  