
    The People of the State of New York, Respondent, v. Daniel J. Madden, Appellant.
    First Department,
    June 28, 1907.
    Crime — grand larceny, second degree — constitutional law — statutes authorizing indeterminate sentences to Elmira Reformatory.
    Evidence on which the defendant was convicted of grand larceny in the second degree, examined and judgment affirmed.
    The statute authorizing sentences to the Elmira Reformatory without fixing a '. term of imprisonment is constitutional. • ,
    Such statute does not unwarrantably encroach upon the judicial functions, nor ' does it contravene the provision's of section 5, article 4 of the State Constitution, which vests the pardoning power in tire Governor, for, by the express terms of the statute, the pardoning power is expressly reserved to the executive.
    Appeal by the defendant, Daniel J.. Madden, from a judgment of the Court of General .Sessions of the Peace in and for the county of New York, rendered on the 30th day of January, 1907, convicting him of the crime of grand larceny in the second degree.
    
      Henry Hardwicke, for the appellant.
    
      Robert C. Taylor and E. Crosby Kindleberger for the respondent.
   Laughlin, J.:

The appellant was jointly indicted and tried with one Delaney, on a charge of grand larceny, in having taken from the person of one John Wenninger a finger ring, gold watch, hank check for twenty-four dollars and sixteen dollars in money.

-The appellant and Delaney were friends, but they were strangbrs to the complainant who resided in Westchester and came to New York city about one o’clock Sunday morning, November 11, 1906, with a view to taking a Turkish bath and remaining at the hath over' night. He first had supper and something to' drink and then took a bath, hut concluded not to remain. He went from the bath, to the American Hotel at the corner of One Hundred and Twenty-fifth street and Third avenue, and on leaving the hotel at about half-past six o’clock, Delaney, who was on the sidewalk, spoke to him, saying in substance that the people in the hotel had. .attempted to eject him, and that Delaney’s friend, the appellant, was in the hotel then, remonstrating With the bartender for having threatened to eject the complainant. It is evident that complainant either from want cf sleep or the effect of drink was not fully conscious as to all that took place when he had been in the hotel for he believed this representation although it surprised him. They were then joined by the appellant, who invited them to McGlatchy’s saloon at One Hundred and Twenty-fifth street and Lexington avenue, to have a drink.

■ The complainant, according to his evidence, accompanied them as a "matter of courtesy, on account of their having befriended him. Shortly after they entered the saloon a question arose concerning the time, and lie drew his gold watch from his vest pocket and found that it had stopped. After winding it and setting it by a clock in the barroom, he replaced it in liis pocket. He had a solitaire diamond ring on one of his fingers, and a government check for twenty-four dollars'and about eighteen dollars in money in his right-hand trousers pocket. They remained in the saloon about three hours and had several rounds of drinks. The complainant, according to his testimony, took one drink of whisky, one of beer"and one of seltzer, and he did not wish to drink; but was urged to do so by the appellan t and Delaney. While they were in the saloon the appellant complained of having a toothache and went out twice for the express purpose of getting toothache drops, and finally said that lie had succeeded. The appellant and Delaney spoke of a friend whom they desired the complainant to meet, and, at their suggestion, he accompanied them to a saloon at One Hundred and Twenty-second street and Lexington avenue to meet their friend. They inet no one'there whom they knew and made no further allusion to the friend. They had a round of drinks there, the complainant taking whisky. They ■ were seated, around a small table in a large room, Some men were seated at two other tables a considerable distance away. The complainant téstified that after he took the drink there, “ It seemed like a sort of overpowering feeling came over mé,” and he dozed off, and that when he awoke the defendant and Delaney had gone and he at once missed liis watch and discovered that his ring and money had also disappeared. One of the men seated at one of the other tables testified that he 'saw appellant and Delaney leave the complainant at the table and depart from tíre saloon ; that when he left the complainant was still there, and that up to the time he left no one went near him after they departed. He also testified that when he left only two others remained in the room,, and they were seated together at a table, arid he knew one of them to be an ironworker. The bartender testified that the appellant and Delaney left complainant when lie-was apparently asleep. On the twentieth or twenty-first day of Hovem.ber the complainant, acting Under the advice of the police, discovered and identified the appellant in Hastings’ saloon, at the corner of One Hundred and Twenty-fifth street and Second avenue. Shortly thereafter the police arfested the appellant and one Ryan, who was with him. The two police officers, who took the appellant and Ryan- to court in the morning," testified1 that' on the way Ryair opened the conversation' on the subject of-returning thé property,- and the appellant said to one of the officers, “ If I give the stuff back do you think the rapper will pull off ? ” to which the officer replied, “ I guess he will,” whereupon Ryan, addressing the appellant,, said, “You are a sucker if you don’t give it back/’ and appellant made no reply. The officer testified that “ rapper ” means the complainant. Th¿ defendant testified in his own behalf arid denied the commission of the crime and this conversation with the officers, but he admitted that he was familiar with the meaning of the word “ rapper ” as. testified to by the officer. One óf thé officers - also testified that, after the formal complaint against the appellant was prepared at the courthouse, appellant sent “his-woman” with a note “ somewhere on the west side to see somebody to get the stuff back.”. It appears, however, that the officer did not read the note. This, officer also testified that the appellant, at about" the same time, told him that “ the stuff ’’ was in Brooklyn.. -The complainant evidently suspected that lie was drugged,-and he was jrennibted to say, without objection or motion to strike it out, that he - did not know whether or not something was put-in to his drink. However that may be, the circumstances as testified to by the complainant indicate that the purpose and design on the part of the appellant and Delaney in taking an interest in him wás not through friendship or for.his good. He testified that he had all of his property when he .entered. the last saloon with the appellant and Delaney and when he dozed .off. It- is evident, therefore, if his testimony is to be believed, that he was robbed by some one. There is no evidence that any one other than the appellant and Delaney was near him. The bartender was a witness and there was nothing to point suspicion toward him. One of the other guests was a witness. He has steady employment and apparently was a reputable citizen. The only others whose conduct is unaccounted for were the two men seated at a table some distance from the complainant, and it appears that one of those was an ironworker. It is improbable that either he or the man with whom he was visiting would commit such a serious crime. If the appellant made the admissions to the police officers, those alone would clearly show his guilt. The nature of the evidence and the fact that he was familiar with the use of the word “ rapper ” as used in criminal circles render their testimony highly probable. The verdict of the jury, therefore, is fairly warranted by the evidence, and no exception, other than to the sufficiency of the evidence, taken upon the trial is urged as a ground for reversal.

The appellant was twenty-seven years of age and he was sentenced to be imprisoned in the New York State Beformatory at Elmira, “there to be dealt with according to law.” It is contended by the learned counsel for the appellant that the sentence is illegal and void upon the ground that no term of imprisonment was prescribed by the court, and that the statute purporting to authorize the sentence of a prisoner to the Elmira Beformatory, without fixing a term of imprisonment, is unconstitutional and void. The special advantage that would be derived by his client from having this contention, which would result in his being sentenced to State’s prison, sustained is not apparent. However, since the question is frequently raised it may as well be decided. Section 9 of chap-tor 711 of the Laws of 1887, which we assume is still in force, for-it was expressly excepted from the repealing clause contained in chapter 378 of the Laws of 1900, which repealed all but two. sections of the act, provides that any person who shall be convicted of an offense punishable by imprisonment in the New York State Beformatory at Elmira, and shall be sentenced to be imprisoned therein, “ shall be imprisoned according to this act and not /iherwise, and the courts of this State imposing such sentence, shall not fix or limit the duration thereof. The term of such imprisonment of any person so convicted and sentenced shall be terminated by the managers of the reformatory, as authorized by this act; but - such imprisonment shall not exceed, the.maximum, term provided, by law for the. crime for .which the- prisoner was convicted and sentenced.”. Section .700 . of the Penal Code provides that “ A maje -between the ages, of sixteen, and" thirty, convicted' .of felony, who .has not theretofore x been :convicted -of a crime.-,punishable.,by imprisonment in a State prison, may,, in. the discretion. of the.. trial ■ -court, be sentenced- to imprisonment in. the .¡New York State ¡Reformatory at Elmira, to .be there confined underihe.provisions of law relating to that reformatory.” It may be. that this provisiones sufficient to prescribe the form of sentence without'having recourse to said section 9 of chapter 711 of the Lays of 1887. It is not very material whether both provisions are to be. construed as applicable or drily one, for under either or both the law contemplates that the court shall not prescribe a fixed term, of imprisonment.- Said chapter .378 o.f the,Laws of 1900 is- a: revision of the laws relating to the State ¡Reformatory at ,Elmira, and supersedes chapter 711 of' the Laws of 1887, excepting sections 7 and 9 thereof, which,, as .has been seen, were not repealed, Section. 20 o.f .said chapter 3.78 of '.the. Laws of 1900 authorizes the boai-d of managers, of the reformatory to allow a prisoner “ to go upon.parole outside, of the reformatory buildings and enclosures,, pursuant to. the ¡rales ¡-of the board.of managers.” Section 21 .provides for retaking., a prisoner who has violated his .parole, and that upon the return of the prisoner he may be retained “ for the remainder of^the maximum ternrpro vided by law.” Section 22 authorizes "and directs .-the. board of ..managers to make rules, not inconsistent with law, prescribing, ámó.ng other .things, the conditions under which prisoners “ maybe paroled or conditionally released,;’, and regulating the retaking and reimprisonment.of prisoners,. and providing for the employment, discipline;, instruction tind education-, óf the prisoners. Section 24 provides, that, when it appears to the hoard of managers that there is strong or, reasonable probability, that any prisoner will remain at liberty without violating, the law, and that his release is not incompatible with the welfare -of society,, they, shall issue to such prisoner an absolute release or discharge from imprisonment. ¡Nothing herein contained shall be construed to impair the power of the Governor to grant a pardon .or commutation in any case.” "

The effect of these provisions is that a person sentenced to the Elmira State Reformatory may be detained there until the . expiration of the maximum period prescribed by law as a punishment for the offense where the defendant is sentenced to a State prisonl There is no difference in principle between the statute and section 687a of the Penal Code, which provides for what is known as an indeterminate sentence, requiring the court to prescribe the maximum and minimum. The precise objection is that the court does not fix the term of imprisonment, and that pardoning power is conferred upon prison officials. The provisions of section'687a have been sustained as constitutional by the Court of Appeals. (People v. Adams, 176 N. Y. 351.) If it be competent for the Legislature to leave it to the prison board or commission to determine, according to their view of the conduct of the prisoner, whether he shall serve one year or five years under an indeterminate sentence with that minimum and maximum limitation, I fail to seewdiy it is hot equally competent for the Legislature to leave it to a prison board or the board of managers of the Elmira State Reformatory to say, according to their view of the conduct of the prisoner,, whether lie- shall remain there one day or five years, a maximum period being prescribed by the law, and no minimum period being prescribed, which is equivalent to a minimum period of a moment. It was entirely competent for the Legislature to direct the courts to sentence prisoners convicted of felonies to the Elmira State Reformatory for the definite maximum period prescribed for such an offense if punishable in the State prison. (People ex rel. Abrams v. Fox, 77 App. Div. 245.) Since it was competent for the Legislature to prescribe the maximum period of imprisonment, and require the imprisonment for a definite period of years corresponding therewith, it is difficult to1 see upon what theory á defendant is prejudiced by the Legislature; having made this humane provisión in the interest of first offenders, to encourage them to reform, without suffering a period of imprisonment of such duration that they might abandon hope of opportunity to regain a standing in the community.

In Michigan, statutes prescribing an indeterminate or a maximum sentence have been declared unconstitutional as an encroachment upon judicial functions, and as in conflict with that part of the Constitution vesting the pardoning power in the Governor (People v. Cummings, 88 Mich. 249, and cases cited), but the'consensus of judicial authority is. in accord with the decision of our Court of ' Appeals in People v. Adams (supra), holding that such statutes' are . constitutional. (State ex rel. Attorney-General v. Peters, 43 Ohio St, 629; George v. People, 167 Ill. 447; Miller v. State, 149 Ind. 607; Murphy v. Commonwealth, 172 Mass. 264.) This court .has sustained the constitutionality of a,' statute prescribing a sentence for a fixed term, with authority vested in the prison officials to discharge at an earlier day according to the facts to be ascertained by them with -respect to the record of the prisoner as to former convictions. (People ex rel. Abrams v. Fox, 77 App. Div. 245.) The constitutionality of the statute authorizing the sentence of a prisoner to the Elmira State Reformatory, without a fixed term, has been sustained ■ by three different justices at Special Term. (Matter of Weber, Daily Reg. Aug. 17, 1888; Matter of Gilmore, N. Y. L. J. Aug. 26, 1893; People ex rel., Bettram v. Flynn, 55 Misc. Rep. 22. See, also, People ex rel. Dunts v. Coon, 67 Hun, 523.). We are' of opinion, therefore, that the Legislature, in enacting this statute, did- ■ hot unwarrantably encroach upon the judicial functions, nor did it contravene the provisions- of section 5 of article 4 of the State Constitution, which vests the pardoning power in tlie Governor, for, by the express terms'of the statute,, the pardoning power is expressly reserved to the Executive. "

It- follows that the judgment of. conviction should be affirmed.

Ingraham, McLaughlin, Clarke and .Scott, JJ., concurred.

Judgment affirmed.  