
    The People, ex rel. Henry Devoe, Appellant, v. John Kelly, Sheriff, etc., Respondent.
    The crime of assault in the third degree is a misdemeanor and punishable only by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both. (Penal Code, §§ 15, m.)
    
      Where a person convicted of such offense was sentenced to imprisonment at hard labor in State's prison, held, that while the sentence was void, as the conviction was valid, the prisoner was not entitled to a discharge on habeas corpus, but should be remanded to the custody of the sheriff, that the trial court may deal with him according to law.
    (Argued October 11, 1884;
    decided October 31, 1884.)
    Appeal from order of the .General Term of the Supreme Coui’t, in the third judicial department, made May 6, 1884, which affirmed an order of the county judge of Otsego county, dismissing a writ of habeas corpus, directed to defendant, the sheriff of Otsego, to inquire into the cause of imprisonment of the relator and remanding him to the custody of said sheriff, “ with the power to carry out the judgment of conviction herein.” The order of General Term also directed that the original judgment “be carried into execution as provided by law.” (Reported below, 32 Hun, 536.)
    The material facts are stated in the opinion.
    
      James A. Lynes for appellant.
    The offense of which the appellant was convicted was a misdemeanor only, and the Court of Sessions had no authority or legal right to sentence him to be confined in the State prison. (Code of Crim. Pro., §§ 56, 71-7; O'Leary v. The People, 4 Park. Cr. 187; The People v. Davis, id. 61; Commonwealth v. Barlow, 4 Mass. 439; Penal Code, §§ 222, 15; Comm. v. Barlow, 4 Mass. 439; Penal Code, §§ 4, 5, 6; Barb. Cr. Law, 18; People v. Van Steenburg, 1 Park. Cr. 39; People v. Borges, 6 Abb. Pr. 132; 2 R. S. 702, § 30; 3 R. S. [5th ed.] 989, §40; Penal Code, §§ 9, 10; Ex parte Lange, 18 Wall. 163, 175, 176; People, ex rel. Tweed, v. Liscomb, 60 N. Y. 559, 591; State v. Gray, 37 N. J. 368; 1 Am. Cr. 554; Ex parte Jilz, 64 Mo. 205; 2 Am. Cr. 217.) The court or a judicial officer has authority to issue a writ of habeas corpus to examine the proceedings, so far as to ascertain whether the trial court has exceeded its authority upon habeas corpus. (Ex parte Lange, 18 Wall. 163, on page 166, and cases cited in note; 
      People, ex rel. Tweed, v. Liscomb, 6 N. Y. 559; People, ex rel. Tweed, v. Baker, 89 id. 460.) If the trial court had no jurisdiction to impose the particular sentence it did impose in this particular case, and upon the facts presented, then the sentence is illegal and void, and the appellant must be discharged. He cannot be remanded for another sentence, the term of the court at which he was sentenced having expired. (Rex v. Ellis, 5 Barn. & Cres. 395; The King v. Bourne, 7 Ad. & Ell. 58; State v. Gray, 37 N. J. 368, and cases cited; Christian v. Commonwealth [5 Metc.], 46 Mass. 530; Code of Civil Pro., §§ 20, 33, subd. 6; id., §§ 20, 43.) The appellant was not bound to bring an appeal from the judgment to correct the error. If he was illegally imprisoned, he had the right to be discharged on habeas corpus. (60 N. Y. 559; People, ex rel. Trainor, v. Samuel N. Baker, 89 id. 460, 466; People, ex rel. Wolf, v. Jacobs, 66 id. 10; People, ex rel. Tweed, v. Liscomb, 60 id. 566; Const., art. 1, § 4.)
    
      Clarence L. Barber, district attorney, for respondent.
    The Criminal Code simply prescribes methods of procedure. (Code of Crim. Pro., §§ 2, 962; Penal Code, § 8.) The same crime may he felony or misdemeanor, according to the punishment inflicted by the court. (People v. Lyon, 1 N. Y. Cr. 404-5; Penal Code, §§ 202, 221, 298, 550; People v. McTameny, 30 Hun, 505.) The court had jurisdiction to sentence relator upon a verdict of assault in the third degree. (People v. McTameny, 30 Hun, 505.) The only mode of reviewing a judgment or order in a criminal action is by appeal. (Code of Crim. Pro., §§ 515, 543; Laws of 1863, chap. 266; People v. Bork, 31 Hun, 372, 373, 375; Code of Civ. Pro., §§ 2016, 2033, 2034; People, ex rel. Tweed, v. Liscomb, 3 Hun, 771, 773; People, ex rel. Catlin, v. Neilson, 16 id. 217; People, ex rel. Wolf, v. Jacobs, 66 N. Y. 10; People v. Cavanaugh, 2 Park. Cr. 658, 662-3 ; In re Wm. Reynolds, 6 id. 294; People, ex rel. Phelps, v. Oyer and Terminer, 14 Hun, 23; Hussey v. People, 47 Barb. 503; Ratzky v. People, 29 N. Y. 124; Messner v. People, 45 id. 7.)
   Danforth, J.

After conviction at the Otsego Sessions of the crime of assault in the third degree, the relator was sentenced to be imprisoned at hard labor in State prison for the term of one year. He was afterward brought before the county judge upon habeas corpus, and on return made by the sheriff that the relator was in custody under this judgment of conviction, he was remanded and the sheriff directed to carry out the judgment of conviction and sentence. Upon appeal to the General Term of the Supreme Court the order of the county judge was affirmed, and it was further ordered that the original judgment rendered by the Court of Sessions be carried into execution.

The court below was of opinion that the sentence was without authority of law and void, that the offense was a misdemeanor and punishable only by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both, as provided by section 15 of the Penal Code. In this conclusion we concur. But as the Court of Sessions exceeded its jurisdiction, its judgment cannot be enforced. It follows, therefore, that the order of the county judge and the judgment of the General Term, so far as they direct the judgment of the Court of Sessions to be carried into effect, should be reversed.

But the conviction is still valid and the prisoner not entitled to his discharge. He should be remanded to the sheriff of Otsego county in order that the Court of Sessions may deal with him according to law. (People, ex rel. Bork, v. Gilbert, 96 N. Y. 631; People, Respondent, v. Bork, Appellant, id. 188, decided June 3, 1884.) So far, therefore, as the order of the county judge directs the prisoner to be remanded to the custody of the sheriff, it is right, as is also the judgment of the General Term, so far as it affirms such direction, and to that extent they should be affirmed.

All concur.

Ordered accordingly.  