
    SUPREME COURT.
    The People ex rel. Edward Evans agt. John McEwen.
    
      Commitment—Habeas corpus — Defects in mittimus will not authorize discharge — Judgment of the court and not the mittimus holds the prisoner — Code of Criminal Procedure, sections 722, 724, 725, 471, 717 — Code of Civil Procedure, section 2013.
    The relator, hy his counsel, sued out a writ of habeas corpus before the recorder of the city of Albany, alleging as a reason for his discharge, that the mandate in the hands of the superintendent of the penitentiary was not a copy of the record of conviction. The return of the defendant sets forth that the relator was detained in the penitentiary by virtue of a warrant, a copy of which was attached to the return, “ and, also, by virtue of the judgment of conviction, for the crime of assault in the third degree, by the recorder of the city of Binghamtom, in having, on the 8th day of May, 1883, at the city of Binghamton, beaten, struck and assaulted one A. Levine.” The return of 'the defendant was not traversed:
    
      Held, first, that upon the return to the writ having been made, the court is . to examine into the facts alleged in the return. If there is no-travers'e ' of those facts they must be taken as true.
    
      Held, second, that the record showed a conviction for a "crime by a competent court, and shows that the court had jurisdiction of the person and of the offense charged,- and the imposition of a sentence which it had jurisdiction to impose. „
    
      Held, third, that if the court had jurisdiction of the.person and of the offense, no insufficiency of the record in point of form will justify the discharge of the prisoner.
    It is" not the, mittimus that holds the prisoner in custody, but the judgment of the court. A prisoner who has been properly and legally sentenced to prison cannot be released, simply because there is an imperfection in what is commonly called the mittimus.
    After a plea of guilty; there is nothing further for a court to do than to pronounce sentence. The plea of guilty is like the verdict of guilty. , There is no duty in the court “to convict,” but only to sentence. When defendant pleads guilty it is not necessary that there should be any conviction.
    
      People ex rel. agt. Barber (89 2f. 7., 460), which came up from a court of record, held to be applicable to conviction in special sessions.
    
      Third Department, General Term, May, 1884.
    On the 9th day of May, 1883, the relator, Edward Evans, was brought before the recorder of the city of Binghamton charged with having beaten, struck and assaulted one A. Levine, and the charge being read to the relator he then and there pleaded guilty thereto, wherefore he was sentenced to be imprisoned in the Albany penitentiary for the period of six-months. On the 16th day of August, 1883, the relator, by his counsel, sued out a writ of habeas corpus before the recorder of the city of Albany alleging as a reason for his discharge that the mandate in the hands of the superintendent of the penitentiary was not a copy of the record of conviction. The return of the defendant sets forth that the relator was detained in the penitentiary by virtue of a warrant, a copy of which was attached to the return, “ and also by virtue of a judgment of conviction for the crime of assault in the third degree, by the recorder of the city of Binghamton, in having on the 8th day of May, 1883, at the city of Binghamton, beaten, struck and assaulted one A. Levine.” The return of the defendant was not traversed. On the twentieth of August the recorder of Albany drdered the discharge of the relator. Upon what ground the order was made does not appear. From that order discharging the relator this appeal is taken.
    
      D. Cady Herrick, district attorney, for defendant McEwen.
    I. The recorder of the city of Binghamton has power “ to try, convict and sentence all persons who may be guilty of any offenses which are or may be triable by courts of special sessions ” (Laws 1867, 291, p. 606, sec. 5; see, also, Code of Crim. Pro., sec. 63). The acts charged against the relator constitute the offense of assault in the third degree (Penal Code, sec. 219). Courts of special sessions have jurisdiction over assaults in the third degree (Code of Crim. Pro., sec. 56). The punishment inflicted was within the jurisdiction of the court (Penal Code, sec. 222). The prisoner was properly sentenced to the Albany penitentiary. Chapter 399, Laws 1869, page 911, authorizes the board of supervisors of Broome county to contract with Albany county for keeping prisoners in the Albany penitentiary. The return shows that such a contract was made.
    II. The record thus shows a conviction for a crime by a competent court, and shows that the court had jurisdiction of the person and of the offense charged, and the imposition of a sentence which it had jurisdiction to impose. The return sets forth that the keeper of the penitentiary held the relator “ by virtue of a judgment of conviction for assault in the third degree, by the recorder of the city of Binghamton, in having on the 8th day of May, 1883, at the said city of Binghamton, beaten, struck and assaulted one A. Levine.” This was not traversed and, therefore, must be taken as true (Matter of Da Costa, 1 Parker C. R., 129; People ex rel. Catlin agt. Neilson, 16 Hun, 214-216). Under the circumstances it was the plain duty of the court below to remand the prisoner. “ The court or judge must forthwith make a final order to remand the prisoner, if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally be so detained has not expired: ” * * * a By virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction ” (Code of Civil Pro., sec. 2032). The only legitimate inquiry is whether the court had jurisdiction of the person and of the offense. That being so no insufficiency of the record in point of form will justify the discharge of the prisoner (People ex rel. Catlin agt. Neilson, 16 Hun, 214-217). The petition itself sets forth a good and sufficient record of conviction; it shows a conviction by a court having jurisdiction of the person and of the offense. There was no insufficiency in the record. It was substantially that provided for by section 721, Code of Criminal Procedure. It is also the form specially provided by chapter 291, Laws 1867 (vol. 1), page 608, section 7.
    III. The only point made in the petition is that the mittimus is not a copy of the record of conviction. It is not the mittimus that holds the prisoner in custody, but the judgment of the court. “A prisoner who has been properly ahd legally sentenced to prison cannot be released simply because there is an imperfection in what is called a mittimus ” (The People ex rel. agt. Baker, 89 N. Y., 460-465). In the case at bar, as in the case of Baker above cited, the writ of habeas corpus “ commanded him to return the cause of his imprisonment and detention.” The return shows that it is the judgment of a court that the defendant holds him upon. In fact the petition for the writ shows the same thing. It is the judgment of the court which authorizes the detention, and that can always' be shown in justification of the detention ” (People ex rel. agt. Baker, 89 N. Y., 460-466). If the mittimus had been decided to be insufficient, proof could have been given of the judgment (See case of Baker, supra, p. 466). In the case at bar the relator makes that proof himself by furnishing as a part of his petition a certified copy of the record of conviction. The order of the recorder discharging the relator should be reversed and the relator remanded to imprisonment in the penitentiary.
    
      Galen R. Hitt, for plaintiff :
    I. The recorder of Binghamton had no jurisdiction to try the charge (assault in the third degree) before himself summarily for such offienses by the charter of Binghamton (sec. 7, title 5, chap. 291, Laws 1867), and by the Code of Criminal Procedure (sec. 56) can only be tried by a court of special sessions, subject to the power of removal, contained in said section 56. The charter provides that “ the recorder or any justice of the peace acting as such may hear, try and determine in a summary way, any complaint for any violation of the laws of the state or the provisions of title twelve, court of special sessions, or that any act was done or step taken in such a court. It does show that the recorder acted as such summarily; that before him as an individual and not as a justice of the special sessions, the prisoner was brought. As such he stated the charge in open court, and that before him as such recorder the prisoner pleaded guilty. This record being conclusive shows an entire want of jurisdiction.
    II. The special law (charter of Binghamton, sec. 7) requires that a record of conviction shall be filed with the clerk of Broome county, and is substantially the same as required by section 721 of the Code of Criminal Procedure; and section 722 of the Code provides, “ if the defendant had pleaded guilty * * * the certificate must state substantially as follows: ‘And the above named A. B. having been thereupon duly convicted upon his plea of guilty.’ ” Every provision of law requires that a certificate or record shall be filed, and section 724 of the Code provides that such certificate or a certified copy thereof is conclusive evidence of the facts stated therein.
    III. The recorder filed a record or certificate, that is, by section 724 of the Code, conclusive evidence of what was done by or before him with reference to the charge against the plaintiff. It fails to show that the prisoner was arraigned before a with an assault, &c. That he pleaded guilty. They then pass to assume that upon such commitment, &c. What connection ? They leave out what the law requires shall be in every record or commitment, and what must appear in every case, before a person’s liberty can be taken away, viz., an allegation that he was in fact convicted and adjudged to be guilty; a plea is not conviction or acquittal, judgment of conviction proceeds- from the court, and is not received by the court from the defendant, and section 722 of the Code is entirely ignored.
    
      IV. Section 725 of the Code, and that is the only law, special or general, that can be found defining the manner of executing a judgment of these inferior courts, provides that “ the judgment must be executed by the sheriff, &c., * * * upon receiving a copy of the certificate prescribed in section 721, certified by the court or county clerk.
    V. Now it must clearly appear that the paper returned by the defendant as his authority for executing the judgment and imprisoning the plaintiff, is not in form or substance in any respect a copy of such certificate. It purports to recite a conviction before another tribunal, to wit, a court of special sessions of which there is no record or certificate.
    VI. It is also urged that there was no record, certificate, commitment or evidence, offered by the defendant before the recorder of Albany, that showed or purported to show that the plaintiff had ever been convicted or adjudged guilty of assault or of any other - offense. The certified copy of the record which plaintiff produced in his petition, and the commitment returned by defendant, both fail to show a judgment of conviction. They show that he was brought before the recorder charged of this act, or of the ordinances of the city (of Binghamton), in any case where the right to trial by jury is not guaranteed by the constitution. But in all cases in which such right is guaranteed he shall sit as a court of special sessions.” Then section 56 of the Code reads : Subject to the power of removal provided for in this chapter, courts of special sessions, except in the city and county of New York and the city of Albany, have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanor committed within their respective counties,” which expressly includes assault in the third degree. This trial not having been before a court of special sessions, no legal punishment could follow.
    VII. In conclusion, it is claimed that it was the duty of the recorder to examine into all questions as to the legality of the imprisonment, and if he was satisfied that any requirement was wanting, or that any defect appeared to show an illegal imprisonment, it then became his duty to discharge, whether the question was raised by the petition or not. For the reasons above stated it is respectfully submitted that the order appealed from should be affirmed.
   Learned, P. J.

—Upon the return having been made to a writ of habeas corpus, the court is to examine into the facts alleged in the return (Sec. 2031). If there is no traverse of those facts, they must be taken as true (Matter of Decosta, 1 Park. C. R., 129; People ex rel. agt. Neilson, 16 Hun, 214). Therefore, in the present case we are to look at the return made to the writ, and not at the affidavits upon which the writ was obtained. Everything not admitted is expressly denied in the return. The return states that the superintendent holds the relator by virtue of a warrant, a copy of which is annexed, and by virtue of a judgment of conviction for the crime of assault in the third degree, by the recorder of Binghamton, etc.

The relator insists that the recorder had not jurisdiction to try the charge before himself summarily, but must sit as a court of special sessions (chap. 291, Laws of 1867, tit. 5, sec. 7), and he insists that this trial was not before a court of special sessions. But the warrant expressly recites the holding of a court of special sessions and the trial of the relator at the same.

Next the relator asserts that the recorder filed a certificate or record (see the section aforesaid and Code of Crim. Pro., sec. 724), and that such certificate shows that the recorder acted summarily and not as a court of special sessions.

To this we have to say that the return does not set forth the certificate, and there is no admission that the certificate set forth in the petition is correct. Furthermore, on looking at section 7, above cited, the form is given which the certificate shall substantially have, when the recorder is sitting as a court of special sessions or otherwise. That form is followed in the copy set forth in the petition.

Next it is said that section 725, Code of Criminal Procedure, directs that the judgment he executed upon the sheriff, &c., receiving a copy of the certificate, and that the warrant under which the relator is held is not a copy of the certificate.

Now it is pointed out in People ex rel. agt. Barber (89 N. Y., 460) that a prisoner who has been properly and legally sentenced to prison cannot be released simply because there is an imperfection in what is commonly called the mittimus; that if the prisoner is safely in the proper custody there is no office for a mittimus to perform. The return states that the prisoner was held by a judgment of conviction, &c. Now we are either to take that as true, in which case the prisoner is properly detained, or we must suppose that the certificate, of which a copy is attached to the petition, is assumed to be the certificate filed by the recorder. In that case we have seen that the form is substantially according to that set forth in section 7, above recited.

One further objection is made. The certificate states that the prisoner pleaded guilty, and proceeds, whereupon said recorder, upon such conviction, did sentence,” &c., and the objection is taken that neither the certificate nor the warrant, after stating a plea of guilty, do in so many words say that the prisoner was convicted. The papers only mention the conviction by way of recital. We think that this objection is hypercritical. After a plea of guilty, there is nothing further for a court to do than to pronounce sentence. The plea of guilty is like the verdict of guilty (Code of Crim. Pro., 471).

There is no duty in the court to “ convict,” but only to sentence. If the prisoner pleaded not guilty, and if he were tried without a jury, then the court would find him guilty or not guilty; but when he pleads guilty,, there is nothing for the court to find. To this effect is section 717, Code Criminal Procedure, when a defendant pleads guilty or is convicted either by the court or by a jury.” This shows that when he pleads guilty it is not necessary that there should be any conviction. The subsequent section (722) gives a form which need only be followed substantially.

We think the order appealed from should be reversed, and the prisoner remanded to the penitentiary.  