
    SUPREME COURT.
    In the Matter of James Divine.
    A prisoner has a right on habeas corpus to show that the court or magistrate acting as a court, who tried and sentenced him, had no jurisdiction.
    
    Not less than three justices can hold a court of special sessions in the city of New York. And where a commitment shows on its face that the prisoner was convic-, ted and sentenced by a court of special sessions held by three justices, the prisoner may on habeas corpus show, by proof aliunde the return, that the court was in fact held by two justices only.
    
      New York Special Term, August, 1860.
    Habeas Corpus, to inquire into the conviction, sentence and detention of James Divine.
    Judge Phillips and T. Stuyvesant, for Divine.
    
    Mr. Sedgwick, Assistant District Attorney, opposed.
    
   Sutherland, Justice.

The warden or keeper of the penitentiary, to the writ of habeas corpus returns a copy of the commitment under which the prisoner was received into his custody, and by virtue of which he is held and detained. The commitment is in due form, and regular on its face. By it, it would appear, that the prisoner was duly convicted of the crime of petit larceny, at a court of special sessions of the peace held by three police justices—Quackenbush, Kelly and Steers—on the 31st day of July, 1860, and that upon such conviction he was ordered and ajudged to be imprisoned in the penitentary for the term of threé months.

It was alleged on behalf of the prisoner, by way of a traverse of this return, that the said court of special sessions at which the prisoner was tried and convicted, was in fact held by two of the police justices only, viz : Justices. Quackenbush and Steers; that Justice Kelly was not, in fact, present when the prisoner was arraigned, tried, or sentenced ; and proofs were offered aliunde the commitment or return to prove such allegations,

These proofs Avere objected to by the assistant district attorney on the ground that in this habeas corpus proceeding I could not go behind the commitment; that it was of the nature of final process and could not be impeached in this proceeding. He also insisted that two police justices Avere authorized to hold a court of special sessions, and, therefore, that the allegations and the proofs thereof were immaterial.

The proofs were received and the questions reserved.

No objections Avere made by the assistant district attorney to the form of the proofs.

It is conclusively shoAvn, by Several affidavits of parties present at the trial, and by the certificate of the- clerk of the said court of special sessions, that the said court at which it is alleged the prisoner Avas so tried and convicted, Avas in fact held by only íavo justices; that Justice Kelly Avas not present when the prisoner Avas arraigned, plead, tried or sentenced.

The questions, then, are—

1st. Has the prisoner a right in this proceeding thus to impeach the commitment ?

2d. If he has this right, do the facts shown by the affidavits to the certificates of the clerk of the court of special sessions- so far impeach the commitment and the jurisdiction of the court Avhich tried and sentenced the prisoner as to entitle him to his discharge ?

I think that both questions must be- answered in the prisoner’s favor.

If two justices could not legally hold a court of Special sessions, but took three to constitute such court, then the trial, conviction and commitment of the prisoner was absolutely void, for then the alleged court that tried and sentenced him was not a court, and the two justices who tried and sentenced him had no jurisdiction whatever, and the prisoner was and is unlawfully imprisoned.

Now, it is the very office of the writ of habeas corpus to ascertain whether the prisoner is unlawfully imprisoned— and. how could the prisoner in this case show that the court was illegally constituted and had no jurisdiction, except in the way he has done by proof aliunde the return or commitment ?

The prisoner could hardly estop himself from the right of showing at any time, and at all times, a total want of jurisdiction.

It is plain by authority, as well as on principle, that the prisoner has a right to show in the proceeding, that the court, or magistrate acting as a court, who tried and sentenced him, had no jurisdiction. It is sufficient to cite The People agt. McLeod, (1 Hill, 377, and notes.)

If, then, the two justices, who undertook alone and without a third, as a court .of special sessions, to try and sentence and commit the prisoner, could not and did not legally constitute a court of special sessions, and had no power to try, convict, or commit him, he must be discharged.

Whether the two justices did or could constitute such court and had such power, depends upon the construction of the 8th and 9th sections of the act of April 16th, 1858, entitled “ an act to provide for the appointment of a clerk and deputy of the court of special sessions, in the city and county of New York, and in relation to the justices of said court.”

By the 8th section, The said court of special sessions may be held by any three of the said police justices, who shall sit alternately, except that one of their number may be selected to preside. And the said justices shall meet in convention and assign justices to hold the several terms of said court.” By the 9th section, all acts and parts of acts inconsistent therewith, are repealed.

By the 48th section of the act of April 14th, 1847, amending the city charter, courts of special sessions in the city of New York, may be held by any two police justices of said city, and it is thereby declared that when so held, all the powers and jurisdiction appertaining by law to such court, shall be possessed and exercised by the officer holding the same.

The question is, was the provision in the act of 1847, repealed by the act of 1858 ?

It is almost too plain for argument that the word may in both statutes means shall. It is hardly necessary to resort to the general provisions of the Revised Statutes, (vol. 3, 5th ed., 869, § 29,) to show this. Statutes conferring criminal jurisdiction should be construed strictly. Not less than three justices can hold the court, under the act of 1858. It would certainly be extraordinary if we had two statutes on our statute books in force, the one authorizing courts of special sessions in the city of New York to be held by two and the other by three police justices.

I think the provision in the act of 1847, plainly inconsistent with the act of 1858, and was intended to be, and was repealed by it; and, therefore, the prisoner must be discharged.  