
    PEOPLE EX REL. ROBERT A. AMMON, APPELLANT, v. ADDISON JOHNSON, AGENT AND WARDEN OF SING SING PRISON, RESPONDENT.
    
    
      Supreme Court—Appellate Division—Second Department,
    
    
      July, 1906.
    (114 App. Div. 876.)
    § 687a Penal Code—A Prisoner Mat be Sentenced Under its Provisions for a Crime Committed in 1899 Before its Enactment.
    Relator’s crime was committed in 1899. At that time § 74 of the Prison Law (L. 1889, chap. 382), the so-called “Bassett Law,” was in effect, and gave discretion to the trial court to impose an indeterminate sentence upon him. By virtue of L. 1901, chaps. 260 and 425, each of which took effect upon Sept. 1, 1901, § 74 of the Prison Law was taken out of the Prison Law and made § 687a of the Penal Code. The only change was that, whereas under the old § 74 it had been discretionary with the court to pronounce an indeterminate sentence, it was by the change in the language, as introduced In the Penal Code, made compulsory. Held: that § 74 of the Prison Law was never repealed; that it was merely^amended and transferred into the Penal Code; and that at all times involved in the case of the relator, the law provided for such a sentence as relator received.
    Same—jEx post Facto Law.
    The re-enactment of § 74 of the Prison Law into § 687a of the Penal Code, did not make it ex post facto as regards the relator.
    The New § 74 of the Prison Law (as Enacted by L. 1901, Chap. 260) —Its Effect.
    The new § 74 of the Prison La-\y (as enacted by L. 1901, chap. 260) gave certain prisoners then serving definite terms of imprisonment certain privileges, but had no relation whatever to the relator, who was not then convicted of any crime.
    § 697 Penal Code—Expiration of Sentence in Summer Months.
    The sentence imposed would have expired in a summer month, as provided by § 697 Penal Code; but the relator delayed the execution of the 'sentence by appealing to the courts. Held: that, as the relator has only himself to blame, that the sentence does not expire in October rather than in November, no legal right is transgressed. Sentence—What is Not.
    Detention in the county jail is not to be counted as a part of the time of imprisonment in the State prison.
    Appeal by tbe relator Ammon from an order of tbe Supreme Court, Westchester County, Keogh, J., entered May 28, 1906, overruling a demurrer to the warden’s return and dismissing tbe writ of habeas corpus.
    The following dates are material to be observed. The indictment charged Ammon with receiving stolen goods in the month of Kovember, 1899. Section 687a, Penal Code, relating to indeterminate sentences, was enacted by L. 1901, chap. .425. The relator was tried in June, 1903, and the judgment of conviction was rendered June 29, 1903. Kewbubgeb, J., imposed the following sentence: that Ammon “ he imprisoned in the State prison at hard labor for the term of not less than four years nor more than four years and six months.”
    As respects his indeterminate sentence, the relator contended:
    (1) That, inasmuch as his offense was committed in 1899, there was no statute in existence under which he could have been legally sentenced, except § 550 Penal Code; and that the trial court had no jurisdiction to impose an indeterminate sentence unless it mitigated the punishment.
    (2) That § 687a of the Penal Code, as to the relator, was ex post facto; that inasmuch as the minimum rate was four years, that parole could not he applied for until its termination, though meanwhile the relator had earned commutation; and that he was thus absohitely deprived of his right to parole, which was a substantial right of a higher nature even than commutation.
    (3) That the relator was entitled to the benefit of L. 1901, chap. 260, amending § 74 of the Prison Law, which extended parole to certain prisoners then confined under definite sentences; and that, in view of that act, the trial judge had no power to impose upon the relator an indeterminate sentence unless he made the minimum one-third of the maximum.
    (4) That the sentence was erroneous in that it did not expire in one of the summer months, as required by § 697 of the Penal Code.
    Eobert A. Ammon, relator, appellant, in person (James A. Whyte, with him on the brief).
    Eobert C. Taylor, Assistant District Attorney, for the respondent.
    
      
       The Ammon case is unique for the number and persistency of the efforts to upset the conviction.
      Ammon was convicted" of receiving stolen goods in the General Sessions, New York County, before Newburger, J., upon June 29th, 1903. A stay, pending appeal, was refused by Giegerich, J. (N. Y. Law Jour. Aug. 5, 1903.) The conviction was affirmed (92 App. Div. 205; 18 N. Y. Crim. 240); and again affirmed, without opinion (179 N. Y. 540). A motion for a new. trial upon newly-discovered evidence was denied by Newburger, J., on Aug. 5, 1904.
      Thereupon, Amnion commenced a series of attacks by habeas corpus. The first was in the U. S. C. C. S. D. N. Y. before Lacombe, J. The writ was dismissed upon the ground that orderly procedure was by writ of error (Re Ammon, 132 Fed. R. 714).
      Ammon then successively obtained writs in Hudson County, before Cochrane, J.; Rensselaer County, before Howard, J.; and Westchester County, before ICeogii, J. Practically the same contentions were urged before each of these judges. Each writ was dismissed. The last, proceeding, before Keogh, J., is the only one from which an appeal was taken; and his order was affirmed in the main case, (supra).
      
      The reader’s attention is now directed to the Sehali case (infra, p. 440) which is closely involved with this Ammon case. Both the "Sehali and the Ammon writs were before Cochrane, J. He first dismissed the ScHali writ; but his order was reversed by the App. iv., 3rd Dept.
      Acting upon this Sehali opinion, Cochrane, J., first sustained Ammon’s writ, and ordered a' re-sentence. In the meantime, however, the District Attorney of New York County intervened in the Sehali case, and procured it to be taken to the Court of Appeals, where the order of the Appellate Divisi m was unanimously reversed. (See opinion, infra, p. 445.)
      Cochrane, J., had, in the meantime, withheld his signature to the order in Ammon’s ease, and, after the reversal of the Sehali matter, he then re-considered his decision and signed an order dismissing Ammon's writ.
    
   Woodwabd, J.:

The relator, Eobert A. Ammon, was convicted under the provisions of section 550 of the Penal Code, on the 29th day of June, 1903, and sentenced to a term in State prison of not more than four years and six months, and not less than four years, under the provisions of section 687a of the Penal Code. ■ The crime of which the relator was convicted was committed in the year 1899, and he now claims that his sentence was illegal, and that he is entitled to be discharged in this proceeding. We shall assume, without discussion, that habeas corpus is the correct proceeding and that the relator has a right to bring as many such procedings as he may be advised are necessary to protect his legal rights, and come directly to the merits of his present contentions, even though they are inconsistent with those previously urged.

The relator’s first proposition is that there was no statute in existence under which he could have been legally sentenced except section 550 of the Penal Code, and that the trial court had no jurisdiction to impose an indeterminate sentence unless it mitigated the punishment. Section 74 of chapter 382 of the Laws of 1889 provided for indeterminate sentences in cases of the character of that now under consideration. This law was known as the Fassett Law, and was designed for the government and regulation of State prisons. In 1901 the legislature adopted chapter 260 of the laws of that year, in which it was provided that “ sections seventy-four, seventy-five and seventy-six of title two of chapter three of part four of the ¡Revised Statutes relating to State prisons as amended by chapter three hundred and eighty-two of the Laws of eighteen hundred and eighty-nine, are hereby amended so as to read as follows,” and the matter inserted as such sections was clearly designed to give prisoners then serving definite terms of imprisonment certain privileges, but having no relation whatever to the relator. It is his contention, however, that this act served to repeal the provisions of section 74 under which the court was authorized to impose an indeterminate sentence, and that the re-enactment of the substance of section 74, making such indeterminate sentence compulsory, where they had previously rested in the discretion of the court, was as to the relator an ex post facto law, imposing a different punishment from that denounced against his crime when committed. This is based on the repealing provisions of chapter 260 of the Laws of 1901, which received the approval of the Governor on the 4th day of April of that year, and the fact that the substance of section 74 of chapter 382 of the Laws of 1889, re-enacted as section 687a of the Penal Code, by chapter 425 of the Laws of 1901, did not receive executive sanction until the 18th day of April of the same year. But whatever of force there might be in the relator’s contention, if section 74 was in fact repealed and section 687a was new matter, the entire structure falls when we come to examine the two statutes, and to take into consideration the intent of the legislature as therein clearly expressed. The evident purpose of the legislature in enacting chapter 260 of the Laws of 1901, and chapter 425 of the same year, was to take section 74 as, it then existed out of the law in 'relation to State prisons, and to place it where it properly belongs, in the Penal Code, and at the same time to extend to a definite class of prisoners then undergoing punishment, certain privileges, not necessary to consider here as they have no relation to the relator, who was not then convicted of any crime. We say this was the evident purpose, for each of said acts provides in its final section that “ this act shall take effect September first, nineteen hundred and one,” and this section is as much a part of the law as any other section. That is, section 74 of the Fassett Law was not repealed until chapter 260 of the Laws of 1901 went into effect on the first day of September, 1901, and on that very day and at the same moment of time, chapter 425 of the Laws of 1901, re-enacting section 74 of the Fassett Law as a part of the Penal Code, went into effect, the only material difference in the provision of the Penal Code and section 74 of the Fassett Law being that whereas the court had had a discretionary power to pronounce an indeterminate sentence, it was by the change in the language as introduced into the Penal Code, made compulsory;— that which had been permitted as a privilege to a prisoner became a matter of statutory right. It is clear that from the moment the relator committed the crime for which he was convicted, up to and including the time when he was finally sentenced, the court had the authority to pronounce an indeterminate sentence, for there was never a moment when section 74 of the Fassett Law, or its substance, so far as the question here involved is concerned, was not in existence. The date of an enactment is of no consequence; the question is when the act takes effect, and that is regulated either by section 43 of the Legislative Law, or by the terms of the act itself; and in this instance the acts involved both provided that they should take effect on the same day. Section 74 of the Prison Law was, therefore, never repealed; it was merely amended and transferred to the Penal Code, and at all times involved in the case of the relator, the law provided for just such a sentence as the relator received.

The sentence being legal and no question of an ex post facto law being presented, and sections 74 to 76 of the Fassett Law as amended in 1901, not being designed for the purpose of affecting the law except as to those who wrere then confined in certain State institutions at the time of its amendment, there is no question necessary to be disposed of, except the contention of the relator that his sentence will expire in a winter month, contrary to existing provisions of law. This does not, however, entitle him to the relief which he seeks, for when the sentence was denounced against him the court provided a sentence which would have expired in one of the months named in the statute (section 697 of the Penal Code), and the relator delayed the execution of the sentence by appealing to the courts. Moreover, the relator would be entitled merely to a resentence in accord with the law, if it were true that the sentence was erroneous in this regard. (Penal Code, § 697, sub’d. 3.) In Dimmick v. Tompkins (194 U. S. 540), the court lays down the proposition that a sentence to hard labor in the State prison does not commence until the person sentenced is taken to the prison, and if by his own efforts to obtain a review and reversal of the judgment he secures a supersedeas pending appeal, his detention meanwhile in the county jail is not to be counted as a part of the time of imprisonment in the State prison, and as the relator has only himself to blame that the sentence does not expire in October rather than in November, no legal right is transgressed.

Any other question presented on this appeal is fully disposed of by the discussion of the court in People ex rel. Schali v. Deyo (181 N. Y. 425, vid infra, p. 445), and there is nothing to do but to affirm the order.

The order appealed from should be affirmed.

Hirschberg, P. J., Jenks, Hooker and Gaynob, JJ., concurred.

Order affirmed. 
      
       See also People ex rel. Stokes v. Warden, 66 N. Y. 342.
     