
    In the Matter of a Certiorari to inquire into the cause of the imprisonment of James Bray.
    
      (Supreme Court, Special Term, Albany County,
    
    
      Filed October, 1890.)
    
    1. Assault—Jurisdiction of recorder of Binghamton.
    The recorder of the city of Binghamton has jurisdiction of a charge of assault and battery, and power on a conviction of such offense to inflict the same punishment as courts of sessions or of oyer and terminer.
    2. Same—Sentence.
    The certificate of conviction, which was on a printed form, adjudged that defend'int'be imprisoned * * * for the term of three months, or pay a fine of $100, and be imprisoned until it be paid, not exceeding three months. The commitment recites that it was adjudged that he pay a fine of $100, and in default should be imprisoned * * * for the term of three months. Meld, that the claim that the sentence was in the alternanative is untenable; its meaning is plain, and no injustice is done to the prisoner.
    The prisoner had been tried and convicted before the recorder of the city of Binghamton of an assault and battery. He was sentenced under the provisions of the city charter, which prescribes the recorder’s jurisdiction. The certificate of conviction provided that “ he be imprisoned in the Albany County Penitentiary for the term of three months or pay a fine of §100, and be imprisoned until it be paid, not exceeding three months days.” The commitment ran “ should pay a fine of $100, and in default of payment to be imprisoned in the Albany County Penitentiary for the term of three months.” A writ of certiorari^was issued to inquire into the cause and validity of his detention.'^.
    
      Andrew Hamilton, for people; William J. Luddeñ,!‘for' relator. >
   Learned, P. J.

Bray was brought before the~recorder. of Binghamton, holding a court of special, sessions,"and was charged with the offense of assault and battery. „ He pleadedÜnot guilty,' demanded a jury, was tried and convicted.'1""

The certificate of conviction adjudged that he be imprisoned in the Albany County Penitentiary for the term of three months, or pay a fine of $100, and be imprisoned until it be paid, not exceeding three months.

The commitment is slightly different. It recites that it was adjudged that Bray should pay a 'fine of $100, and in default of payment should ba»imprisoned in the Albany County Penitentiary for the term of three months; and it directs the keeper of the penitentiary to keep him until discharged according to law. Two questions are raised on this certiorari:

First. As to the jurisdiction of the recorder;

Second. As to the validity of the sentence.

Chapter 214, Laws 1888, p. 334, § 3, gives the recorder authority to hold courts of special sessions, and says :

“ Said court shall render judgment upon such conviction and shall inflict such punishment * * * as any other court having jurisdiction of the offense could inflict, and shall have the same jurisdiction to sentence and punish the persons so convicted as courts of sessions or courts of oyer and terminer have for the same offense.”

I think the charge of assault and battery must be equivalent to a charge of assault in the third degree. Penal Code, § 219.

Assault in the third degree is, by § 222 of the same Code, punishable by imprisonment for one year, or a fine of not more than $500, or both.

But by § 56, Code Criminal Procedure, courts of special sessions, except in New York and Albany, have exclusive jurisdiction of assault in the third degree, and by § 717 of the same Code the punishment which may be inflicted by such courts is limited to a fine of fifty dollars, or imprisonment for six months.

Section 62, Code Criminal Procedure, provides that a court of special sessions is to be held by one justice of the peace, “ unless provision is otherwise made by law,” and provision is thus made in the city of Binghamton. This provision gives the recorder the same power to sentence and punish the persons so convicted as courts of sessions or courts of oyer and terminer have for the same offense. Now, if a prisoner were convicted of assault in the third degree in either of those courts, § 222 of the Penal Code would apply. But the relator argues that courts of special sessions have exclusive jurisdiction. Code Grim. Pro., § 56. On the other hand, a prisoner indicted for assault in the first degree might be convicted in a court of oyer and terminer of assault in the third degree, and a person so convicted might be punished under § 222, Penal Code. I think, therefore, that the clause above cited from the Binghamton charter was intended to enlarge the power of the recorder holding special sessions as td the extent of punishment he can impose.

It is analogous to the third subdivision of § 68, Code Criminal Procedure, and the fourth subdivision of § 64 of the same Code, which give these increased powers of punishment to the special sessions of Albany and to the special sessions of New York It is next urged that the sentence is void because' in the alternative.

The Code of Criminal Procedure, §§ 484 and 718, authorize the court which imposes a fine to direct that defendant be imprisoned until the fine is paid, specifying the extent of the punishment, not to exceed one day for every dollar. That is what was done in this case. The commitment expresses this exactly, reciting that defendant was adjudged to pay a fine of $100, and in default to be imprisoned for three months. Three months are less than 100 days. Whenever defendant should pay his fine he would be entitled to his discharge.

The certificate of j udgment is not quite as plain, because owing to the use of a printed form the words “ three months ” are twice inserted. But there can be no misunderstanding as to the commitment directing the keeper of the penitentiary to hold Bray. That recites the imposition of a fine and the judgment that in default he be imprisoned the specified time of three months.

I think it would be unreasonable to hold that the certificate of conviction had any other meaning. I do not mean to say that a sentence plainly in the alternative is good. But the law authorizes the imposition of a fine and of imprisonment until it be paid for a specified time not exceeding the statutory limit. Here the fine is imposed ; the time of imprisonment specified. It does not exceed the limit, and Bray does not claim to have paid his fine. The meaning of the sentence is plain; the commitment makes it clear and no injustice is done to the prisoner.

The prisoner is remanded to the custody of the keeper of the penitentiary.  