
    The People ex rel. Henry Hunt, Relator, v. John S. Markell, Defendant.
    (County Court, Onondaga County,
    February, 1898.)
    Crimes — Certificate of conviction.
    Á certificate of conviction which, among other things, states the commission of the offense, its date, and its nature, by the statement that che accused was, before the city recorder, “ charged with petit larceny ” in said city, is sufficient, under the Code of Criminal Procedure, § 721, although it fails to state the property taken or the person from whom it was taken.
    The relator procured a writ of habeas corpus, and the defendant,. upon the hearing, filed a return that he held the defendant pursuant to a certificate of conviction of which the following (omitting the formal parts) is a copy:
    
      “ Whereas, at a Court of Special Sessions holden before me, the. undersigned, Charles Carmichael, recorder of the City of Borne, in said city on that day (i. e., September 29, 1897) the above-named defendant was before said recorder charged with petit larceny in said city on the 25th day of September, 1897, and he having therer upon pleaded guilty to said charge and failed to demand a jury, and having been duly tried upon said plea, and upon such trial having been duly convicted, it is adjudged, that he be imprisoned in the Onondaga County Penitentiary for six months. Dated September 29, 1897. Charles Carmichael, Becorder of the City of Borne.”
    Rubin & Tierney, for relator.
    George T. Davis, assistant district attorney of Oneida county, for defendant.
   Ross, J.

It is claimed by the relator’s attorneys that the certificate of conviction is insufficient in that with other things it does not state the person from whom the property was taken, and also fails to specify the articles stolen.

Section 721 of the Code of Criminal Procedure, requires that a certificate of conviction of a Court of Special Sessions must. he substantially in the .form set forth in that section, and requires with other things that it briefly designate the offense. Such designation requires such certainty that a jury may deliver an intelligent verdict, that the law may render a proper judgment, and that the defendant may plead the judgment in bar of any other prosecution for the same offense. People v. Taylor, 3 Den. 91; People v. Stocking, 50 Barb. 573, 586; People v. Olmsted, 56 N. Y. St. Repr. 311; Matter of Brown, 19 Misc. Rep. 692; People ex rel. Snyder v. Whitney, 22 id. 226.

The relator’s attorneys rely upon the Brown case decided by Mr. Justice Hiscock. The certificate of conviction in that case was very loosely drawn; and with other objections raised by the attorneys for the relator that it did not state the date of the offense, nor was it in any manner indicated. The learned justice discharged the relator upon the ground of .the failure to specify the dates of the offense. The statement of the learned justice of the other facts in the case, shows- the greater necessity for a specific statement of the date. That case only decides that “the date of an offense is one of the essential particulars of the -description thereof required to be inserted in such a certificate.” In this case the place of the commission of the offense and the date are both set forth: • “ The above-named defendant was before said recorder charged with petit larceny in said city on the 25th day of September, 1897.” I think, while the specification of the offense., might well be more specific, that sufficient appears to give the recorder jurisdiction of the person and of the offense. Bennac v. People, 4 Barb. 31; Case of Twelve Commitments, 19 Abb. Pr. 394,401; People v. Johnson, 46 Hun, 668; affirmed, 110 N. Y. 134; People v. West, 106 id. 293; People v. King, 110 id. 418.

The principal difficulty in cases- of this character, in which -the certificate of conviction is somewhat vague, is whether the offense is described with that degree of certainty that the defendant may plead the judgment in bar of another prosecution for the same offense.

I think the difficulty in this case, in respect to proving, upon a-possible subsequent trial for the same offense, this conviction,, is. purely imaginary. The. test laid down by Mr. Bishop is as follows: “ Whether if that' which is set out in .a second indictment had been proved under the first there could have been a conviction; when there could, the second cannot be maintained; when there ciould not, it can be.” 1 Bish. Cr. Law (8th ed.), § 1052, subd. 2. Where a defendant relies upon an adjudication of the matters in controversy in a former suit, he is not confined to the record alone, but may show by extrinsic proof what particular matters were litigated, provided the matters sought to be shown were within the issues tried. Rake v. Pope, 7 Ala. 161; Williams v. State, 13 Tex. App. 285, 288; Commonwealth v. Sutherland, 109 Mass. 342.

The plea of a former acquittal or conviction is a plea of a mixed nature, consisting partly of matters of record and partly of matters of fact. The matters of fact are the averment of the identity of the ofíense and of the person, and evidence is admissible to show that, in fact, the crimes are the same. Clem v. State, 42 Ind. 420, 423; State v. Maxwell, 51 Iowa, 314; People v. Cramer, 5 Park. Crim. 171, 178; Abbott’s Trial Brief Criminal Cases, § 572, and cases there cited; Freeman on Judgments,'! 273. The plea of a former conviction is a good plea in bar, however' irregular the proceedings before the justice may have been. State v. George, 53 Ind. 434; Brinkman v. State, 57 id. 76. The last case cited holds that the defendant is entitled to an acquittal upon the ground of a former acquittal'or conviction, if he shows his case has been previously Submitted to a court or jury that might have convicted or acquitted him. Bryant v. State, 72 Ind. 400. The pleas of a-former acquittal or a former conviction are favored pleas in this country. Baysinger v. State, 77 Ala. 60.

The only question, upon the return of a writ of habeas corpus to inquire the cause of imprisonment of one detained under an apparently valid legal process, is whether the court has jurisdiction to try the relator. The merits of the conviction are not open for review. People ex rel. Tweed v. Liscomb, 60 N. Y. 570; People ex rel. Catlin v. Neilson, 16 Hun, 214; People ex rel. Forbes v. Markell, 92 id. 286.

For the reasons herétofore given the relator must he remanded and the writ discharged.

Eelator remanded and the writ discharged.  