
    People v. Trezza.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1891.)
    1. Homicide—Appeal—Stay of Execution.
    An appeal from a judgment sentencing defendant to death for murder in the first degree operates only as a stay of execution of the death penalty, and not of the confinement of defendant in the penitentiary pending the appeal, under Code Grim. Froc. N. Y. § 528, which provides: “ When the judgment is of death, an appeal to the court of appeals stays the execution, of course, until the determination of the appeal. ”
    2. Criminal Law—Double Punishment — Remanding Defendant to Penitentiary.
    Remanding defendant to the penitentiary after the decision of an appeal from a judgment sentencing defendant to death, after the time fixed for the execution of such sentence, is not punishment twice for the same crime.
    3. Same—Sufficiency of Death-Warrant.
    Laws N. Y. 1885, o. 439, minutely prescribes the manner in which the death penalty shall be executed in New York, and a warrant for the execution thereof, which directs that execution be done by putting defendant to death “in the mode, man ner, and way, and at the place by law prescribed and provided, ” is sufficient.
    Appeal from court of sessions, Kings county.
    Indictment against Nicola Trezza for homicide. Defendant was convicted for murder in the first degree, and sentenced to be executed. The warrant directed that defendant be executed “in the mode, manner, and way and at the place by law prescribed and provided. ” Code Grim. Proc. N. Y. § 528, provides that “an appeal to the court of appeals from a judgment of the supreme court affirming a judgment of conviction stays the execution of the judgment appealed from, upon filing with the notice of appeal a certificate of a judge of the court of appeals or of the supreme court that, in his opinion, there is reasonable doubt whether the judgment should stand, but not otherwise. When the judgment is of death, an appeal to the court of appeals stays the execution, of course, until the determination of the appeal.”
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Dailey & Bell, for appellant. James W. Ridgway, Dist. Atty., (John F. Clarke, Asst. Dist. Atty., of counsel,) for the People.
   Barnard, P. J.

The appellant was convicted of murder in the first degree in Kings county, and sentenced to be executed within the week beginning 21st of July, 1890. An appeal was taken, and the time fixed for the execution of the appellant passed by, the appeal operating as a stay of execution by law. On the 24th of February, 1891, the conviction was affirmed by the court of appeals. 26 N. E. Rep. 933. On the 6th of March, 1891, the convict was resentenced to death during the week beginning on the 20th of April, 1891, “in the mode, manner, and way and at the place prescribed and provided by law.” The prisoner was, pending the appeal, in the state-prison at Sing Sing, and upon the second sentence was again taken there. A writ of habeas corpus was applied for by him, and this application was denied. The prisoner claims that he is entitled to his discharge because he suffers punishing twice, in this: that pending the appeal he was kept in solitary confinement, and upon the second sentence he is returned to the same confinement. The point is without foundation, even if the solitary confinement pending appeal was improper. It'was ended with the second sentence, anfl now such confinement is legal. The stay of execution in the statute stayed physical death, and it may be that on application by the convict the solitary confinement might have been ordered to cease as well as the death penalty; but such confinement was not within the provisions of law that a person cannot be convicted or punished twice for the same crime. The confinement was entirely right. The prisoner was delivered to the warden of the state-prison in accordance with law. The stay, by the appeal, was only of the “execution” until the determination of the appeal. Code Crim. Proc. § 528. The right to detain a convicted murderer in the state-prison was not stayed, but the enforcement of the death penalty only, by this section. The sentence itself was proper. The mode of inflicting death upon the prisoner is minutely provided for by statute. Section 491, Code Crim. Proc.; chapter 489, Laws 1885. The sentence was that the execution was to be carried out in the mode, manner, and way provided by law for the execution of the sentence. The justification for the death is under the law, and a sentence could add to the force of the statute so as to protect the warden. The writ was properly denied, and the order should be affirmed. All concur.  