
    The People of the State of New York ex rel. John Jobissy, Appellant, v. Thomas H. Murphy, as Warden of Clinton Prison, at Dannemora, N. Y., Respondent.
   Hill, P. J., Crapser, Bliss and Heffernan, JJ., concur; McNamee, J., dissents, with a memorandum.

McNamee, J. (dissenting):

The relator is about forty years of age, and an electrician by trade. He is confined ih the State prison rit Danrifcmbfa, Under sentence, arid has no attorney: He has sued oht a writ of habeas cdrpus and is conducting this appeal in his own behlaf. As might be fairly expected the record is hot artfully prepared. HoWbver; the substantial facts aré riot disputed. Iri March, 1929, he Was convicted of rtibbery in the second degree arid sentenced to State prison for the remainder of his life. The basis for this life sentence,- of heeessity, was at lerist three previous convictions fbr felbny. In May, 1912,- he was convicted of burglary ih Pennsylvania; in April, 1919, he was convicted of criminally receiving stolen goods in Lockport; ih May, 1919; he Was convicted of robbery, sfecoftd degree, in New York; rind in October, 1919, he was convicted of assault in the second degree in Auburn.

For the offense in Pennsylvania, he was pardoned by the Governor of that State While serving his sentence in April, 1915; and upon the conviction for assault in 1919, sentence was Suspended.

Although the suspension of Sentence does not prevent an appeal from ri judgment of eofaviction (Code Crim. Proc. § 517),- and although one may be' eohvieted as a second, offender after sentence has been suspended upon a conviction of a previous offense (Code Crim. Proc. § 470-b), a previous cbnvititiori, when Sentence has be'eh suspended, crinnbt constitute any part Of the basis bf a sentence to life imprisonment as a fourth offender. (People ex rel. Marcley v. Lawes, 254 N. Y. 249.) In the easb of a suspended Sentence both the direct and indirect consequences of the ednvictiori are temporarily or indefinitely postponed (Marcley Case supra), while in the case of a pardon those consequences áre definitely and permanently removed.- I am unrible to rifccept the principle that a- result which is temporary, indefinite rind incomplete has greater virtue to protect the accused than that whibh iS permanent; definite rind complete. By analogy,- the part is never grbater than the whole. And tb say that a suspended sentence may be imposed at a later time is rather an empty formula; because those who have bad substantial experience in criminal matter's know that imposition of such a sentence very rarely follows a suspension,- ritid then only on account of ah added offense.

The two cates cited by the majority,- in my judgment,- have no application here, in view of the Marcley case; because they had to do with second offenders only, rind in no way involved fourth offenders. It was precisely that distinction which was pointed out so clearly in the Marcley caso. A pardon should be effective' tb preVerit one becoming ri fourth offender in ahy Circumstances where a sus= pended sentence Will ha/ve that effect.

The order should be reversed, and the prisoner remanded for proper sentence.  