
    The People of the State of New York ex rel. John Joseph Battle, Appellant, v. W. Cecil Johnston, as Director of Dannemora Hospital, Respondent.
   Appeal by the relator from an order of the Clinton County Court which dismissed a writ of habeas corpus. The relator was indicted for the crimes of assault, second degree, abduction and rape, first degree, tried, convicted of all three and sentenced respectively on those counts on June 24, 1946 to 5 to 10 years, 10 to 20 years, and 20 to 40 years as a second offender with the sentences to run consecutively. The relator based his petition on the ground that the consecutive sentences imposed double punishment for what constituted a single act. The indictment charged that the assault in violation of subdivision 3 of section 242 of the Penal Law was committed in Albany on March 27, 1946 by imposing grievous bodily harm upon one Marian Williams by striking her about the head and face with his fist. The abduction in violation of subdivision 3 of section 70 was alleged to have been committed by taking the same person on the same day from Albany to the Town of Colonie with the intent to compel her against her will and by force to be defiled and the rape was alleged to have been committed on the same person the same day in the Town of Colonie, her resistance being prevented by fear of bodily harm which she had reasonable cause to believe as a result of the assault previously committed and threats then made to inflict further harm with a knife. The relator’s petition is clearly premature in that he does not question the court’s power to sentence him for one crime, the highest grade of offense charged, and accordingly his maximum sentence for the crime of rape will not expire until 1986. Additionally habeas corpus is not this relator’s remedy at this time. If he feels the sentence is excessive he can apply to the sentencing court. Order unanimously affirmed.  