
    The People, etc., App’lts, v. William T. Carter, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 14, 1888.)
    
    1. Habeas corpus—Writ of—Code Civil Pro., § 2038—Right of the. DISTRICT ATTORNEY TO NOTICE — COURT HAS NO POWER UNTIL SUCH NOTICE IS GIVEN.
    Under section 2038, Code Civil Procedure, notice of the time when and. the place where the writ is returnable must be served upon the person who has an interest in continuing the imprisonment, or his attorney, or the district attorney. Until such notice is given, the court has no power to discharge the prisoner.
    2. Court of special sessions—Power' to punish—Code Crim. Pro., §717.
    Under section 717, Code Criminal Procedure, the power of the court of special sessions is limited to a fine of fifty dollars or imprisonment for six months. By imposing a more severe punishment, while the conviction may be proper, the judgment will be void.
    3. Criminal law—Power of appellate court to remit to trial court FOR THE IMPOSITION OF PROPER SENTENCE — APPLIES ONLY TO JUDGMENTS RENDERED UPON INDICTMENTS—No POWER TO REMIT TO COURT OF SPECIAL SESSIONS—Chap. 226, Laws 1863.
    The power to remit the record of conviction to the trial court to pass-proper sentence did not exist until the passage of chapter 226 of the Laws 1863. The appellate court, however, can only remit the record to the trial court upon a judgment rendered upon indictment, but the statute does not include courts of special sessions, those courts not being courts of record or having jurisdiction to find indictments or to give judgment thereon.
    Appeal from an order of the county judge of Steuben county discharging the respondent from imprisonment upon a writ of habeas corpus.
    
    
      A. M. Burrell, for app’lts; A. H. Burrell, for resp’t.
   Haight, J.

—The respondent was convicted by a court of special sessions of Steuben county of a violation of the excise law and sentenced to pay a fine of $100, or be imprisoned in the Steuben county jail until the fine was paid, not exceeding one hundred days. He refused to pay the fine, and was consequently committed. Thereupon a writ of habeas corpus was issued by the county judge, directing Henry Baldwin, the sheriff, to produce the defendant before such judge, who made the order discharging him without notice to the district attorney of the county. Prom such order the district attorney appeals to this court.

Proceedings under a writ of habeas corpus are special proceedings under the Code, and a proper title "would be “ The People ex rel. William T. Carter v. Henry Baldwin.” The proceedings under the writ, however, do not appear to be so entitled, and the notice of appeal is entitled the same as those in the proceedings. The district attorney had power to bring the appeal (Code of Civil Procedure, § 2059), and inasmuch as the body of the notice is sufficient in form and the title conforms to that under which the proceedings were instituted, we are of the opinion that we may disregard the defect in the title.

Section 2038 of the Code of Civil Procedure provides that “ Where it appears from the return of the writ * * * that the prisoner is in custody by virtue of a mandate, an order for his discharge shall not be made until no lice of the time when and the place where the writ is returnable or to which the hearing has been adjourned, as the case may be, has been either personally served eight days previously or given in such other manner and for such previous length of time as the court or judge prescribes as follows:

First. Where the mandate was issued or made in a civil action or special proceeding, to the person who has an interest in continuing the imprisonment or restraint, or his attorney.

Second. In every other case to the district-attorney of the county within which the prisoner was detained at the time when the writ was served.

Under this provision the district-attorney of the county should have had notice of the proceeding, and the county judge had no right to discharge the prisoner without such notice. The People v. Cassels, 5 Hill, 164-170; Ex parte David Beatty, 12 Wend., 229-231; The People v. Pelham, 14 id., 48; The People ex rel. Hewlett v. Brennan, 61 Barb., 540; The People ex rel. Navagh v. Frink, 41 Hun, 188-193; Church on Habeas Corpus, 115.

The order must, therefore, be reversed, and the respondent remanded to the custody of the sheriff unless it now appears to this court that further imprisonment would be illegal.

It is conceded on the part of the district-attorney that the court of special sessions had no power to fine the defendant $100 or to imprison him until that fine was paid; its power being limited under section 717 of the Code of Criminal Procedure to a fine not exceeding fifty dollars or imprisonment for six months. The judgment was, therefore void, whilst the conviction was proper. The People ex rel. Stokes v. Riseley, 38 Hun, 280; The People, etc., v. Nash, 12 N. Y. Wk. Dig., 545; The People ex rel. De Voe v. Kelly, 97 N. Y., 212-215; The People, etc., v. Bork, 96 id., 188-200; The People, etc., ex rel. Tweed v. Liscomb, 60 N. Y., 559.

The only question, therefore, left for consideration is, whether the county judge should have detained the prisoner until he had paid the fifty dollars, the fine which the court of special sessions had the power to impose or should have remanded him to the custody of the sheriff with directions to the court of special session to pass a proper judgment.

In the Tweed Case (supra), cumulative judgments were entered, the imprisonment of one to commence after the imprisonment upon the former judgment had expired. They were in the nature of separate and distinct judgments. He had served out the full term of imprisonment upon one judgment before the application for the writ was made. The first judgment entered was one which the court had the power to make, and it was not, therefore, void. The subsequent or cumulative judgments entered were such as the court did not have power to make, and they were consequently held void and the prisoner was discharged.

In the other cases to, which we have alluded, as well as the case under consideration, the judgment was one which the court did not, have the power to make, and was therefore void, and the imprisonment thereunder illegal. The respondent was, therefore, entitled to his discharge, unless the county judge should have remanded him to the court of special sessions, with directions to sentence him in accordanee with the provisions of the Code of Criminal Procedure referred to.

In the cases of Kelly and Bork (supra), such practice was adopted. They were cases, however, in which convictions had been had in courts of record upon indictments. The power to remit the record of conviction to the trial court to pass proper sentence did not exist until the passage of chapter 226 of the Laws of 1863. This act is an act to amend section 24, article 3, title 6, chapter 3, part 4 of the Revised Statutes. That article relates to writs of error upon judgments rendered on indictments in courts of record, and section 24, as amended, reads as follows:

If the supreme court shall affirm such judgment, it shall direct the sentence pronounced to be executed, and the same shall be executed accordingly. If the supreme court shall reverse the judgment rendered, it shall either direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case; provided, however, that the appellate court shall have power upon any writ of error when it shall appear that the conviction has been legal and regular to remit the record to the court in which such convicion was had to pass sentence thereon as the said appellate court shall direct.”

under the Code of Criminal Procedure, the writ of error has been abolished, and a review of the judgment in a criminal action by appeal is substituted in the place of it. The provisions of the statute are not otherwise affected by the provisions of the Code of Criminal Procedure, and therefore remain in force. The People v. Bork (supra).

But it will be observed that the supreme court or the appellate court only, is given the power to remit the record to the trial court, and that only in a case provided for by the title, that is, upon a judgment rendered upon indictment. The court of appeals, therefore, had power, under this statute, to remit the record in the Bork case to the court of oyer and terminer, and in the Kelly case to the court of sessions of the county, those courts being the trial courts, and the conviction being upon indictments tried in those courts; but the statute does not include courts of special sessions, those courts not being courts of record, or having jurisdiction to find indictments, or to give judgment thereon.

We consequently are of the opinion that no power exists to remit to the court of special sessions for further judgment. The People v. Nash (supra); The People ex rel. Stokes v. Riseley (supra); Lattimore v. The People, 10 How., 336

Further imprisonment would, therefore, be illegal; and for this reason the order should be affirmed.

Barker, P. J., Bradley and Dwight, JJ., concur.  