
    The People ex rel. Albert J. Adams, Relator, v. Addison Johnson, Warden, Etc., Respondent.
    (Supreme Court, Westchester Special Term,
    July, 1904.)
    Right to commutation for good behavior — It is a substantial right — Chapter 137 of the Laws of 1903, limiting the right to the case of a definite sentence, does not apply to crimes committed before its enactment — Otherwise it would be ex post facto.
    Chapter 137 of the Laws of 1903, which took effect April 6, 1903, providing that commutation for good behavior may be earned only in case the convict is confined upon a definite sentence, does not apply to a case where a convict was sentenced April 17, 1903, to pay a fine and to serve a term of not less than one year nor more than one year and nine months in a State prison for an offence committed prior to the passage of the act of 1903.
    A statute, which deprives a person accused of a crime of any substantial right which he possessed when the offence was committed, or, which, after that time, changes the punishment of his offence, is as to him ex post facto and invalid.
    The right of a prisoner to earn a diminution of his term by good conduct is a substantial one of which he cannot be deprived by a law passed subsequent to the commission of the offence.
    The relator, Adams, was convicted of the crime of “policy possession,” in violation of section 344a of the Penal .Code, at a Criminal Term of the Supreme Court, in the county of Hew York, held by Scott, J., in April, 1903. "Upon April 11, 1903, he was sentenced to pay a fine of $1,000 andto imprisonment for not less than one year nor more than one year and nine month's in a State prison.
    
      A motion fór a certificate of reasonable doubt was denied by Scott, J. (for Scott, J.’s. opinion see blew York Law Journal, April 27, 1903). The judgment of conviction was subsequently affirmed by the Appellate Division (People v. Adams, 85 App. Div. 390); and subsequently by the Court of Appeals (176 IST. Y. 351). The matter was taken to the Supreme Court of the United States upon a writ of error, and the judgment of conviction was there affirmed. Adams v. ISTew York, 192 U. S. 585.
    Prior to April 6, 1903, a court, in sentencing a prisoner (except in three specified cases), was required to limit the term of the sentence, so that the sentence would expire during the so-called “summer months,” i. e., April, May, June, July, August, September and October. Penal Code, § 697.
    In so calculating the term, the statute required the court to “limit the term of the sentence, having reference to the probability of the convict earning a reduction of his term for good behavior, as provided by Chapter 21 of the Laws of 1886, and assuming that such reduction will be earned.” Penal Code, § 697.
    Section 687a of the Penal Code, which provides for the imposition of indeterminate sentences, expressly declares that “the maximum limit of such sentence shall be so fixed as to comply with the provisions of section 697 of the Penal Code,” supra.
    
    Scott, J., sentenced Adams upon April 17, 1903. The possible maximum for his offense was two years. See Penal Code, § 344a. The commutation upon two years would have been four months; and, in view of that fact, a two-years’ sentence would have expired in December, i. not in a “summer month.” See Penal Code, § 697. Scott, J., therefore imposed a maximum of one year and nine months, which, on its face, would have expired about January 26, 1905 ; but which was so calculated as to expire October 11, 1904, assuming that the defendant did not forfeit his commutation for good behavior.
    Upon April 6, 1903, the Legislature passed Laws of 1903, chapter 137, which took effect immediately. This enactment amended the so-called “Commutation Law” (Laws of 1886, chapter 21), and provided in effect that commutation for good behavior might be earned only in case the convict was confined upon a definite sentence. The date of the passage of Laws of 1903, chapter 137, was long after Adams’ offense had been committed, but was eleven days before sentence was imposed upon him.
    The Superintendent of State Prisons was in doubt as to whether the effect of Laws of 1903, chapter 137, was to deprive convicts, held on indeterminate sentences, of the right to earn commutation for good behavior. He accordingly submitted the matter to the Attorney General, and received an opinion, of which the following is a part: “From a perusal of the above provisions of the Code and the statute, it appears to be quite plain that persons sentenced for indeterminate-sentences can earn no commutation by good behavior under the provisions of Chapter 21, Laws of 1886, as amended. This fact, taken in connection with the express direction of Section 687a of the Penal Code above quoted, that the maximum limit of such sentence shall be so fixed as to comply with the provision of law requiring a sentence to expire during the specified summer months leads me to the conclusion that in sentencing a prisoner to prison under an indeterminate-sentence, such sentence must be made so that if the prisoner so confined under such indeterminate sentence should serve the maximum penalty prescribed thereby, he would be released during one of the months specified by Section 697 of the Penal Code.”—Opin. of Att. Gen.
    The relator, Adams, claimed that in view of 'the enactment of Laws of 1903, chapter 137, the Warden would refuse to release him on October 11, 1904, upon the date when his period- of commutation should begin, and that the Warden would detain him during the full period of his maximum-term, i. e., one'year and nine months. He claimed, therefore,, that the sentence would not expire during the “summer months,” and that it was, therefore, illegal, and in violation of the provisions of section 697 of the Penal Code;
    The People, in answer to the writ, claimed that Laws of 1903, chapter 137, had no application to Adams’ case, as his offense was committed long before its passage; and that if Adams’ case could be deemed to be contemplated by Laws of 1903, chapter 137, then Laws of 1903, chapter 137, was ex post facto and void in so far as it affected offenses committed before its passage.
    The application in this case, as appears by the opinion, was argued, and a decision was handed down sustaining the writ. Upon application of the People- a re-argument- was granted: and upon further consideration the writ was dismissed and the prisoner remanded.
    In his first decision, sustaining the writ, Keogh, J.,.decided that the prisoner should not be discharged, but should be remanded to the sheriff of the county of New York, to be taken again before the Criminal Term of the Supreme Court for re-sentence.
    After this first decision was rendered, the relator made an incidental application to be admitted to bail until he could be brought before the Criminal Term. This application was denied, as appears by the closing words of the opinion.
    Benjamin F. Tracy, L. Laflin Kellogg and Abram J. Rose, for relator.
    Robert C. Taylor and Henry G. Gray, assistant district attorneys, for respondent.
   Keogh, J.

The offense of which the relator was convicted was committed by him in 1901. He was sentenced on the 17th of April, 1903, to pay a fine and to a term of not less than one year nor more than one year and nine months imprisonment in a State prison. This was an indeterminate sentence. It is the law that the term of a sentence imposed upon any person convicted of a crime must he so limited as to expire during the months of April, May, June, July, August, September or October. It was also the law of this State at the time the relator committed the offense that any person confined in a State prison on conviction of a felony, where the term equals one year, may earn for himself a commutation of his sentence of two months for the first year, and two months for the second year.

After the commission of the offense by the relator, and before his sentence on April 17, 1903, there was enacted chapter 137 of the Laws of 1903, which went into effect on the sixth of April of the same year.

The effect of this law was to deprive convicts confined under an indeterminate sentence of the right to earn a commutation. It is claimed by the prisoner’s counsel that this law is applicable to him, while, the district attorney contends that it is ex post facto as to the relator because his offense was committed before its passage. On the previous argument the district attorney conceded that the law was not ex post facto as to the relator, so that that question was not then presented for decision. If the law of 1903 applies to the defendant, then he is entitled to no commutation whatever and his sentence of c$ne year and nine months will expire in January, 1905, which is contrary to law. This illegality in the expiration of the prisoner’s term during a winter month, it is contended by his counsel, makes void the whole sentence of imprisonment, and entitles the relator to an immediate discharge.

If, however, the law1 of 1903 is not applicable to the relator, then he is entitled to a commutation under the law as it existed when he committed the offense, and such commutation of his sentence will end his term in the month of October in conformity to the law.

It is the settled law of this State, that a statute which deprives the accused of any substantial right which he possessed when the offense was committed or which after that time changes the punishment of his offense, is as to him ex post facto.

If the prisoner had been tried and sentenced at any time after December, 1901, when the offense was committed and before April 6, 1903, when the law took effect, it must be -conceded, that he would have been entitled to á commutation of his sentence for good conduct in States prison. Such a right to earn a diminution of his term by his own act is a substantial one, of which by a law passed subsequent to the commission of the offense he cannot be deprived. Murphy v. Commonwealth, 172 Mass. 264; Hartung v. People, 22 N. Y. 105, 106.

The commanding judicial decisions by which statutes providing for the punishment of crime have been construed, have treated such laws as intended to deal with future offenses •and not to fit past ones. Any other rule would afford opportunity and temptation under one guise or another for the enactment of laws by which the punishment of some special ■offense or special offender might be changed after the crime was committed, which would necessarily lead to intolerable -discrimination and oppression.

It is the law that existed when the offense was committed that Adams has violated, and it is the punishment for such offense as declared by that law that he should receive.

The sentence imposed by Mr. Justice Scott under the law as it existed when the offense was committed was legal, and the commutation to which he is entitled will cause his term to expire in October in accordance with law.

The writ is dismissed, and the application for stay and bail denied.

.Writ dismissed and application for stay and bail denied.  