
    Supreme Court—General Term—Fifth Department.
    
      June, 1886.
    PEOPLE v. HOLMES.
    Habeas Corpus—2 R. S. 716, § 81, as to form of process for COMMITMENT BT SPECIAL SESSIONS, NOT REPEALED BY §§ 721, 725, Code Crim. Pro.—Immaterial errors disregarded UNDER SECTION 784, CODE CRIM. Pro.
    It appeared on the return to a writ of habeas corpus that defendant was held by warrant of commitment under the hand and seal of a justice of the peace composing a court of special sessions, for a violation of the excise laws, which warrant complied with the provisions of 2 E. S. 716, § 31. Defendant was discharged on the ground that the commitment “ was invalid and not made in accordance with any law or statute now in force.”
    
      Held, error; that said provisions of the Eevised Statutes are still in force, not having been expressly repealed, and the provisions of section 721, 725 of the Code of Criminal Procedure regarding the certificates to be given by the court in such cases, not being exclusive, nor necessarily inconsistent with said section of the Eevised Statutes.
    Further held, that if said section be regarded as repealed or superseded, as the commitment herein substantially complied with the requirements of the Code as to certificates, and as it is immaterial to defendant whether he be imprisoned under a process in the form of a warrant under the Eevised Statutes or a certificate under the Code, the objection should be disregarded under section 684, Code Crim. Proc.
    That the certificate of conviction under said section 721, recites the offense as committed in November, 1886, instead of November, 1885, does not affect its validity, nor can it mislead or prejudice defendant.
    
      The right to appeal from a final order discharging a prisoner upon a crimi- = nal accusation in the name of the People, by the attorney-general or district attorney, is given by section 2059, Code Crim. Proc.
    Appeal by the people from an order of the county judge of Livingston county discharging the defendant, William Holmes on habeas corpus from arrest.
    The facts appear in the opinion.
    
      George W. Daggett, district attorney, and James Wood, for the people, appellant.
    
      S. Subbard, for the respondent.
   Smith P. J.

The sheriff, to whom the writ of habeas corpus was directed, returned that he had the defendant in his custody by virtue'of a warrant of commitment, a copy of which was annexed to his return. The warrant was given under the hand and seal of Robert Heel, a justice of the peace of the county of Livingston, dated the 22d of January, 1886, and addressed to any constable of said county, and to the keeper of the common jail thereof. Tt commanded the said constable to forthwith convey and deliver into the custody of the keeper of said jail the body of the said William Holmes, who, as the warrant recited, was that day convicted before said justice, composing a court of special sessions for his trial, of a criminal offense against the excise laws, and was sentenced by said court to pay a fine of fifty dollars, and to be imprisoned in the jail of said county until the fine is paid, not exceeding fifty days. The order of the county judge discharging the defendant shows the ground of the discharge to have been that the commitment, by virtue of which he was imprisoned, was “ invalid and not made in accordance with any law or statute now in force.” Ho objection is taken to the proceedings before the justice prior to the judgment of conviction; the only question is whether the commitment is sufficient in form.

The warrant complies with the provisions of the Revised Statutes (2 R. S., 716, § 31), and if those provisions are still in force it is sufficient to authorize the imprisonment. We are not aware of any express repeal of the section above referred to. None is found in the Code of Criminal Procedure. Laws 1881, chap. 442. Does the Code repeal it by implication ? That code provides that when a conviction is had in a court of Special Sessions, upon a plea of guilty or upon a trial, the court must make and sign a certificate in substantially the form therein prescribed (§721), and within twenty days after the conviction must cause the certificate to be filed in the office of the clerk of the county. § 723. It also provides that the judgment must be executed by the sheriff or by a constable, etc., upon receiving a copy of the certificate prescribed in section 721 certified by the court or the county clerk. (§725.) And section 962 applies the Code to all criminal actions and proceedings therein provided for, from the time when it takes effect. But these provisions are, not in terms exclusive, nor are they necessarily inconsistent with the section of the Revised Statutes above cited. It may be said that the provision, that the court shall make, sign and file a certificate as therein prescribed, is imperative. Grant it. But there is nothing in the case before us to show that the provision was not complied with. All that appears is that such certificate or a certified copy thereof, was not delivered to the constable. It may be granted, also, that the duty imposed upon the constable by section 725, upon his receiving a copy of the certificate, is imperative. But is not his duty the same on receiving a warrant as prescribed by section 31 of the Revised Statutes ? The Code does not prohibit the delivery of a warrant to the officer, nor does it require the court to deliver him a copy of the certificate. Indeed, it does not even authorize such delivery expressly, but perhaps the authority to do so may be fairly inferred. Such authority, however, is not inconsistent with section 31 of the Revised Statutes, the only effect of continuing both in force, being that the court may deliver either a warrant or a certificate to the officer, whose duty would be the same in either case. Doubtless section 31 is modified by subsequent legislation authorizing a single justice to hold a Court of Special Sessions, but in all other respects it seems to be in force.

But if these suggestions are incorrect, and section 31 is to he regarded as repealed or superseded, we are not prepared to say that the commitment issued by the Court of Sessions is wholly void. If it substantially complies with the ' provisions of the Code it is sufficient. It recites all the substantial facts which the Code requires to be stated in the .certificate of the court. True, it is not certified by the court to be a copy of its certificate, but it is the original, certified under the hand and seal of the justice composing the court, and unless mere form is to be preferred to substance, it seems to meet the material requirements of the statute. Section 684 of the Code of Criminal Procedure provides that neither a departure from the form or mode prescribed by such Code, in respect to any pleadings or proceedings, nor an error or mistake therein, render it invalid, unless it have actually prejudiced the defendant or tended to her prejudice, in respect to a substantial right. It is quite immaterial to the defendant whether the process, by virtue of which he was imprisoned, was in the form of a warrant under the Revised Statutes, or of a certificate under the Code of Criminal Procedure, and the variance complained of being at most a defect in the proceeding, which worked no prejudice, does not invalidate the process.

A clerical error is pointed out by which the certificate is made to recite the offense as having been committed in November, 1886, instead of November, 1885. Obviously, that error could not have misled or prejudiced the defendant, and it does not affect the validity of the certificate.

A motion to dismiss the appeal is made upon the ground that since the defendant was discharged he has been rearrested upon a valid certifi cate issued upon the judgment, and has satisfied the judgment. It appears, however, that the defendant has commenced an action for false imprisonment, based upon the alleged invalidity of the process, which is now pending, and that fact, we think, is a defense to the motion. The right to appeal from a final order, discharging a prisoner upon a criminal accusation, in the name of the people, by the attorney-general or district attorney, is given by section 2058 of the Code of Civil Procedure.

Our conclusion is that the motion to dismiss the appeal shoúld be denied, and the order appealed from reversed. If the judgment has been satisfied, that fact is, of course, a bar to any proceedings under it.

Barker, Haight and Bradley, JJ., concurred.  