
    SUPREME COURT—APP. DIVISION—THIRD DEPT.,
    December 28, 1911.
    THE PEOPLE EX REL. GAINANCE v. LANSING I. PLATT, SHERIFF.
    (148 App. Div. 579.)
    (1.) Petit larceny—Judgment of conviction at hard labor.
    A judgment convicting a defendant of petit lacerny not charged as a first offense is not illegal and excessive because it includes a provision that he be imprisoned. “ at hard labor.”
    (2.) Same.
    Such a provision does not increase the punishment or render the1 judgment void, nor can it be reviewed on habeas corpus, for section 171 of the Prison Law requires that so far as practical all prisoners, physically fit, in State prisons and reformatories be employed at hard labor eight hours a day.
    (3.) Same—Court of Special Sessions—Habeas corpus.
    One convicted of petit larceny before a city judge sitting as a Court-of Special Sessions is not entitled to be discharged on habeas corpus because in the information the crime was not charged as a first offense.
    (4.) Same—First offense.
    It is not essential to the jurisdiction of the court that either the information or the warrant should allege that the Crime charged is a first offense.
    Appeal by the defendant, Lansing I. Platt, sheriff, from an. order of the County Court of the county of Albany made on the 6th day of September, 1911, discharging and releasing the relator from further confinement in the Albany County Penitentiary upon the return of a writ of habeas corpus.
    The petition for the writ stated that the cause of the imprisonment was a commitment issued by George W. Stevens, city judge of the city of Rensselaer. A copy of the certificate of conviction was annexed to the petition, which shows that tha relator was charged with petit larceny, and that he “ thereupon •pleaded guilty, and having been thereupon tried and upon such trial duly convicted. It is adjudged that said Edward Gainanee be confined at the Albany County Penitentiary at hard labor for the term of one hundred and eighty days.”
    It appeared by the affidavit filed by the relator in support of the petition that the petit larceny was not charged as a first offense. The final order discharging the relator stated that it was made “ on the grounds that said commitment was illegal and void.”
    
      James R. Stevens, Jr., and Rollin B. Sanford, for the appellant.
    
      John S. Wolfe, for the respondent.
    
      
       See notes 1-355, 12-324.
    
   Sewell, J.:

The theory of the county judge seems to have been that the judgment was illegal and excessive because it included the provision “ at hard labor.” Section 171 of the Prison Law (Consol. Laws, chap. 43; Laws of 1909, chap. 47) provides that “ the superintendent of State prisons, the superintendents, managers and officials of all reformatories and penitentiaries in the State, shall, so far as practicable, cause all the prisoners in said institutions, who are physically capable thereof, to be employed at hard labor, for not to exceed eight hours of each day, other than Sundays and public holidays.”

It is evident, therefore, that the provision in the judgment of conviction for hard labor did not increase the punishment and was not in excess of the jurisdiction or power of the court. That such a provision cannot render the judgment void or be reviewed on habeas corpus is too plain a proposition to admit of argument. It may also be observed that the conviction was valid and the relator was not entitled to be discharged because in the information the crime of petit larceny was not charged as a first offense. It was held in People v. Cook (45 Hun, 34)’. that it was not essential to the jurisdiction of a court of Special Sessions in a ease of petit larceny that the information or the warrant should allege that the crime charged is a first offense. The same doctrine was asserted in People v. Johnston (112 App. Div. 812), where Mr. Justice Chester said: If it be a first offense in fact, the court has jurisdiction to try the case, ‘and it is to be deemed <a first offense unless the contrary is charged.” It follows that the order discharging the relator should be reversed, the writ dismissed and the relator remanded to the sheriff of Albany county, and the judgment of conviction; carried into effect.

All concurred, except Smith, P. J., not voting.

Order discharging relator reversed and writ dismissed, and relator remanded to custody of sheriff of Albany county, that the judgment of conviction may be carried into effect.  