
    Supreme Court—General Term—Second Department.
    September, 1885.
    PEOPLE v. BAUER.
    Error in sentence—when defendant cannot take advantage of.—Practice on appeal as to.—Penal Code,
    SECTION 351, SENTENCE UNDER.
    That the sentence to imprisonment is for a shorter period than the law fixes for the crime of which defendant is convicted, cannot be assigned as error by him, it being to his advantage.
    Under section 351, Penal Code, in regard to bets, etc., on horse-races, etc.,— which provides that offenses therein specified are “punishable by imprisonment for one year, or by a fine not exceeding $2,000, or both,” —the trial court is vested with a discretion to punish the offender in one or both of the modes specified; and it seems, that imprisonment may be inflicted thereunder for any term not exceeding one year.
    Where the conviction is unassailed, and the judgment is reversed for error in the sentence, the appellate court should remit the record to the court in which the conviction was had, to pass such sentence as the appellate court directs.
    
    Where the defendant was indicted under section 351, Penal Code, for permitting a building owned by him to be used for the purpose of registering bets, etc., pleaded guilty, and was sentenced to pay a fine of $750 and to be imprisoned for three months, and he thereafter paid the fine,—Held, on appeal, the conviction being unassailed, that the judgment should be affirmed.
    Where the conviction is valid, an error in the sentence cannot be taken advantage of by habeas corpus.
    
    Appeal from a judgment of the Court of Sessions of Kings county, convicting the defendant Paul Bauer, of an offense under section 351, Penal Code.
    Also, appeal from an order of Pbatt, J., March 14, 1885, ■dismissing a writ of habeas corpus, and remanding the prisoner under the sentence, etc.
    The defendant was indicted, February 9, 1885, in said ■Court of Sessions, as follows :
    “ The grand jury of the county of Kings, by this indictment, accuse Paul Bauer of the crime of knowingly permitting .a building to be used for the purpose of recording and registering bets and wagers, he, the said Paul Bauer, being then and ■there the owner of said building, committed as follows:
    “ The said Paul Bauer, late of the town of Gravesend and county of Kings, ón the second day of February, in the year of ■our Lord one thousand eight hundred and eighty-five, and on divers other days and times, with force and arms, at the town and county aforesaid, being then and there the owner, proprietor and occupant of a certain building in the town of Graves-end, in the county of Kings, and within the State of JSTew York, did then and there unlawfully, willfully and knowingly permit the said building and part of said building to be used and occupied by certain persons, whose names are unknown to the grand jury, with certain books, cards, papers, documents, tickets, blackboards, signs, notices, apparatus and paraphernalia, for the purpose of recording and registering bets and wagers, then and there to be made with certain other persons, to the grand jury unknown, upon the results of certain trials and contests of skill, speed and power of endurance of certain men and beasts, to wit: horses (a more particular description of which said "building, and of which said persons and of which said books, cards, papers, documents, tickets, blackboards, signs, notices, apparatus and parphernalia, and of which said bets and wagers, and of which said trials and contests, and of which said men, and of which said beasts, and of which said horses is unknown to the grand jury), against the form of the statute in such case made and provided, and against the peace of the people of the State of Hew York and their dignity.”
    On being arraigned at a term of said court, held by Hon. Henry A. Moore, county judge of said county, with associates, and a jury, defendant pleaded guilty, and was sentenced to fine and imprisonment, and thereupon paid the fine imposed, as set forth in the opinion, and served notice of appeal from the judgment of conviction and sentence.
    
      Jerry A. Wernberg, for defendant, appellant.
    I. The court below could fine or imprison, or both fine and imprison the defendant, and while the court could exercise a discretion in the fine imposed between six cents or two thousand dollars, if it imposed any imprisonment, with or without a fine, it could only sentence for the term of one year. Penal Code, §§13, 351, 726. Any sentence, or part of a sentence, imposed by any court, unauthorized by law, is void, and in this case, while the imposition of a fine was legal and proper sentence by the court, the imposition of three months imprisonment was the exercise of an unauthorized power by the court, and such imprisonment was illegal and void, and should be treated as a nullity. A sentence not conformable to law, as not warranted by statute, is ultra vires, and, like every other act, whether judicial or ministerial, is void. People v. Tweed, 60 N. Y. 592. The judicial power can only be exercised according to law. People v. Bork, 2 N Y. Crim. Rep. 177. The Court of Quarter Sessions, in the case of King v. Collyer, sentenced the prisoners, upon indictment for assault, to imprisonment for one month, and that defendants ask pardon upon their knees of the prosecutor and cause an account of the sentence to be printed in the Daily Advertiser, and not to be discharged out of prison until the judgment had been fully performed; the judgment was held illegal, except as to the imprisonment, and the defendants were discharged. Rex v. Collyer, Sayer, 44. When the sentence is in excess of the penalty prescribed by law, the defendant may serve the legal penalty and then be discharged. People v. Tweed, 60 N. Y. 559. When the defendant was convicted of the offense of assault and battery, the punishment at most for which was a fine not exceeding §250 and imprisonment for one year, and was by the court sentenced to imprisonment for one year and to pay a fine of §500, the court held he could not be discharged, “ for then the sentence to imprisonment for one year was authorized and legal ; that is a separate portion of the sentence, complelein itself, and the balance of the sentence can be held void and disregarded.” People v. Baker, 89 N. Y. 460.
    II. The court must take care of two points first, that the sentence conforms to the law in fact; secondly, that it shall so appear upon an examination of the record. 1 Bishop's Crim. Pro. § 859. It is error for a court having discretion to impose either a fine or imprisonment, or both, to decide that it has no discretion, and sentence a defendant to pay a fine and be imprisoned. Commonwealth v. Fontain, 127 Mass. 452. A sentence pronounced under an apparent erroneous view by the court of law, cannot be maintained by the appellate court, on a different theory, as it would then become an original sentence by the appellate tribunal. Broadway v. People, 43 Mich. 34.
    III. After judgment has been rendered against a prisoner, and he has been committed to jail thereunder, the court has no power, even during the same term, to revise such judgment, and increase the sentence imposed. State v. Cannon, 5 Crim. Law Mag. 387; Commonwealth v. Wymouth, 2 Allen (Mass.) 144; Brown v. Rice, 57 Me. 56. In the case of People v. Whit-son, 74 Ill. 20, when the defendant having been sentenced to ten days’ imprisonment on each of forty different counts (the sentence not providing that such forty terms of ten days each should follow each other successively), the court was not permitted after the expiration of the term to impose sentence anew, but defendant was discharged on habeas corpus, after serving one term often daps. In State v. Gray, 37 N. J. 368, the defendant was convicted of adultery in the Special Sessions, and sentenced to imprisonment at hard labor in the state prison for the term of six months. He was discharged by habeas corpus, because the statute provided “ that every person convicted of adultery, shall be punished by fine not exceeding $100, or by imprisonment not exceeding six monthsthe illegal part of the sentence was the substitution or imposition of the words “ hand laborf which was not in the statute. The court held the sentence illegal and void, as being in excess of the jurisdiction of the court, and discharged the prisoner. In Ex parte Jilz, 64 Md. 205, the defendant was convicted of criminal abortion, and sentenced to imprisonment in St. Louis county jail for the term of one year, and to the payment of a fine of $500. He was committed to said jail under said sentence. He obtained a writ of habeas corpus, and was discharged on the grounds that the court had exceeded its power in sentencing Jilz to confinement in the county jail for one year, and that the sentence under it and commitment were void, for the reason that under the law applicable to St. Louis county, said court only had jurisdiction to sentence him to an imprisonment for the period of six months in the city work-house of the city of St. Louis. In Ex parte Lange, 18 Wall. 163, the prisoner was indicted under an act of congress for stealing, purloining, embezzling, and appropriating-to his own use, certain mail-bags, the value of which was less than $25, and, on trial, convicted of appropriating to his own use, mail-bags, the value of which was less than $25; the punishmennt for which offense, by said statute, is imprisonment for not more than one year, or a fine of not less . than $10, nor more than $200. He was sentenced under said conviction to one year’s imprisonment, and to pay a fine of $200, committed to jail under said judgment and conviction in execution of the sentence, and on the following day, paid his fine. He was then brought before the court on habeas corpus. An appeal by the prisoner was taken to the U. 8. Supreme Court, which held, that the prisoner had fully satisfied, by the payment of the fine, one of the alternative punishments to which alone the law subjected him, and the power of the court to punish further was gone.
    IV. The appellate court in this case cannot return the case to the Sessions for the defendant to be re-sentenced. First. The judgment and sentence is valid and legal, so far as it imposes a fine. Second. The fine having been paid, it is an executed judgment, and satisfied, so far as the same was legal and binding upon the defendant. Third. It would be unjust to the defendant, because the imprisonment cannot be less than one year, if at all. The defendant has paid his fine, $750, and has been imprisoned in the penitentiary from March 6 to March 14, eight days, and if now sentenced for a year' (the only term of imprisonment the law authorizes) will be punished more than the statute intended. Fourth. The court bolow considered imprisonment for a year too much punishment, and if he had been sentenced to imprisonment for a year, would not have imposed a fine of $750. Fifth. The fine is a separate portion of the sentence, complete in itself, and the balance of the sentence is void. People ex rel. v. Baker, 89 N. Y. 467.
    V. If the judgment and sentence was absolutely void, the defendant could be re-sentenced, but if any part of the sentence is valid, the defendant cannot have a second judgment and sentence imposed upon him for the same conviction. The general power of the court over its own judgment, orders and decrees, in both civil and criminal cases, during the term at which they are made, is undeniable, but in the power thus exercised by the court in criminal cases there must be some limit. In this case, as in the Lange case, the judgment rendered, although in part erroneous, was not absolutely void. It was rendered by a court which had jurisdiction of the party and the offense on a valid conviction. The error of the court, in imposing in part a punishment not provided by statute, did not make the judgment wholly void.
    
    The judgment of the Court of Sessions, so far as it imposes a. fine, should be affirmed ; the portion inflicting imprisonment should be reversed, and, the fine being paid, and the legal part of the judgment executed and satisfied, the defendant should be discharged.
    That the point in question could be raised by habeas corpus, appellant’s counsel cited : People ex rel. Wolf v. Jacobs, 66 N. Y. 10; People v. Baker, 89 N. Y. 460; Church on Habeas Corpus, 293 ; People ex rel. Devoe v. Kelly, 2 N. Y. Crim. Reps. 432; People ex rel. Tweed v. Liscomb, 60 N. Y. 559 ; People v. McLeod, 3 Hill, 665 ; Edgmour Case, 8 How. Pr. 478 ; Devine Case, 11 Abb. 90 ; People v. Rawsen, 61 Barb. 619 ; Ex parte Lange, 11 Wall. 178.
    
      James W. Ridgeway, district attorney, for the people, respondent.
    I. The only question before this court is whether the judgment entered on a lawful verdict is erroneous. Granting that the judgment be erroneous—we respectfully submit that the course of this court is plain under § 543, Code Crim. Proc., which provides: “ Upon hearing the appeal the appellate court may in cases where an erroneous judgment has been entered upon a lawful verdict, correct the-judgment to conform to the verdict; in all other cases they must either reverse or affirm the judgment appealed from, and in cases of reversal, may, if necessary or proper, order a new trial.” The alleged error is that the court had no power to imprison for less than one year. But the defendant goes further than this, and claims that inasmuch as the “ fine ” part of the sentence is valid, and has been complied with, that therefore an error made in the “ imprisonment ” part of the sentence cannot be corrected. There is no authority for this extraordinary proposition. Error,to exist in a sentence, need not exist in all parts of it. Where the Code says plainly, existing errors may be corrected, the defendant contends boldly, that error nullifies it. There would be no such provision as § 543, unless it were assumed that' error existed. The weakness with the appellant’s contention is, that the court intended to both fine and imprison, as the Code plainly allowed. The conviction being valid, defendant is entitled to nothing more than to have the case remanded to the court below for proper sentence. People ex rel. Devoe v. 
      Kelly, 2 N. Y. Crim. Rep. 428; People ex rel. Bork v. Gilbert, Id. 56, 177.
    II. The defendant cannot urge the error, if it be one, because it was to his advantage. The only possible error is on the question of time,—i. e., that the court erred in sentencing for less than one year. Therefore, in alleging this error, the defendant is alleging error that inured to his advantage, and this he will not be allowed to rely upon here. Kane v. People, 8 Wend. 211 ; Oroton v. State, 5 Ala. 463 ; Barada v. State, 13 Mo. 94 ; 1 Bish. Crim. Law, § 390; Wattingham v. State, 5 Shield, 64.
    III. The court did not commit any error in the sentence imposed on the defendant'. The statute does not say that the crime must be punished by imprisonment for a year. JSÍeither does it read, “ not less than one year,” but its plain interpretation is that the court may punish as high as one year and no more—that is, that it cannot exceed one year. Commonwealth v. Pemberton, 118 Mass. 36. . Reason does not construe the statute to direct the court in every case to impose the absolute sentence of one year. The statute is to be liberally construed, under Penal Code, § 11.
    1st. There is no limit fixed within which the punishment must fall. 2d. Inasmuch as the expression used is “ punishable,” which means liability to punishment. 3d. Inasmuch as the intent of the codifier to fix a limit and not a rule may be inferred from the phraseology in the next line of sec. 351 : “ or by a fine not exceeding two thousand dollars,” one may rightly assume that he intended to provide a possible variation of the term. 4th. Inasmuch as we are bound to assume that common sense would foresee that different terms of imprisonment would be proper in different cases. We urge, therefore, that the power to imprison for one year includes the power to imprison for three months.
    On the point that the error, in the sentence, if any there were, could not be taken advantage of by habeas corpus, the district attorney cited : People ex rel. Devoe v. Kelly, 2 N. Y. Crim. Rep. 428; People v. Cavanagh, 2 Park. 650; Ex 
      
      parte Shaw, 7 Ohio St. 81; §§ 515, 543, Code Crim. Proc.; 2016, 2032, 2034, Code Civ. Proc.
    
    
      
      In People v. Bork (2. N. Y. Crim. Rep. 177), it was held by the Court of Appeals, that the appellate court was not obliged to fix the time of imprisonment, or to itself exercise a discretion; that the appellate court directs the sentence when it points out the law providing for the punishment and directs the court below to sentence thereunder.
    
   Dykmak, J.

The defendant was indicted in February, 1885, in the Court of Sessions of Kings county, for permitting a building which he owned to be used for the purpose of registering bets and wagers, and plead guilty to the indictment.

The statute under which the indictment was framed provides that a person guilty of the offense charged therein, is punishable by imprisonment for one year, or by fine, not exceeding two thousand dollars, or both.

A fine of seven hundred aud fifty dollars was imposed on • the defendant, and he was also sentenced to imprisonment in the penitentiary for the term of three months. The defendant paid the fine and appealed to the Supreme Court from the judgment of conviction and the sentence. The complaint is against the sentence, and the claim is that the time fixed for the imprisonment is too short and therefore unauthorized.

If the validity of this complaint be assumed, a ready answer to it is that the defendant is unprejudiced by the error, and ought not to be heard against it. Being advantageous to him, he cannot assign it for error.

Proceeding, however, with the examination, we find the defendant to be punishable by imprisonment for one year, or by fine, or both. The statute does not declare that the defendant, or persons in like case offending, shall be punished by imprisonment for a year, or for not less than a year, or a fine, but that he is punishable or may be punished in that way. That is, the trial court is vested with discretion to punish a defendant on a conviction in one or both of the modes specified. Bearing in mind the rule prescribed for the construction of the Penal Code, by which all its provisions must be construed according to the fair import of the terms to promote justice and effect the objects of the law, it seems not unreasonable to assume that under the statute in question imprisonment may be inflicted for a term not exceeding a year.

But again, assuming all that can be conceded to the defendant’s insistance, he presents at most but an irregularity. His conviction is valid, and his sentence to imprisonment is alone nullified. The most that can be done for him therefore, on the appeal, is to reverse the judgment for error in the sentence, and remit the record to the court in which the conviction was had to pass such sentence as we direct. People v. Bork, 2 N. Y. Crim. Rep. 177.

We cannot revise the conviction, because it stands unchallenged ; no complaint is raised against it; and if we could' review the discretion of the trial court in laying the punishment of the defendant wre should find nothing to condemn.

It had jurisdiction of the person of the defendant and of the subject matter, and the sentence conforms to the provision of the statute, the only objection being that the length of the term is insufficient.

There was, therefore, no attempt to exert power beyond its jurisdiction. It did not exceed the time authorized by statute.

On this whole case, our conclusion is , that the judgment should be affirmed.

Barnard, P. J., and Pratt, J., concur.

On the appeal from the order dismissing the writ of habeas corpus, etc., the following opinion was delivered :

Dykman, J.

After the defendant was convicted on his own confession and sentenced to imprisonment for three months, and fined §750, he paid his fine and remained in the penitentiary for eight days. Then he sued out a writ of habeas corpus, and claimed his discharge because he had paid his fine, and the sentence to imprisonment was illegal and void. ■

The mistake consists in supposing the sentence to be void. It was at most, irregular, and the error could only be corrected by appeal. The defendant could not claim a full discharge. His conviction was regular, and it was within the power and jurisdiction of the court to fine him §2,000, and imprisonment for one year. He was fined §750, and imprisonment for three months. If that was erroneous the relief must come by appeal, and remanding the defendant should be affirmed.

Barnard, P. J., concurs. (Peatt, J., not sitting.)  