
    PEOPLE ex rel. MOONEY v. WALSH.
    
      N. Y. General Sessions ;
    
      February, 1888.
    
      Again, N. Y. Supreme Court, First District, Chambers;
    
      March, 1888.
    1. Former adjudication; trial of indictment.] Where an adjudication of present insanity against an indicted person, and consequent commitment to an insane asylum, under the statute,* §is followed by a discharge as of sound mind, and an order of court thereon to •put the accused on trial, this determination that the accused is now sane does not preclude his commitment to the asylum again, on the ground that he is a dangerous person,* if the verdict acquits him on the grounds of insanity at the time of the offense.
    
      I do hereby finally order that all the proceedings in this matter be and the same hereby are dismissed, and the prisoner and relator, Louis Dorfmann, be and he hereby is remanded to the custody of the respondent herein.
    And it is further ordered that the district attorney of New York County have leave to file the record of conviction herein nunc pro tunc in the office of the county clerk of New York.
    And it is further ordered that the commitment herein, together with all the papers annexed thereto, may be taken from the files of this court for the purpose of remanding the prisoner and relator.
    * The provisions of the law as to commitment of an insane person,, either before or during the trial of an indictment, or after conviction, are embraced in sections 658-662 of the Code of Criminal Procedure.
    § 658, subd. 2,- provides: “If a defendant in confinement, under indictment, appears to be, at any time before or after conviction, insane^ the court in which the indictment is pending, unless the defendant is under sentence of death, may appoint a like commission [commission of not more than three disinterested persons, as provided for in subd. 1, of this section] to examine him and report to the court as to. his sanity at the time of the examination.”
    § 659. “ If the commission find the defendant insane, the trial or judgment must be suspended until he becomes sane; and the court if it deems his discharge dangerous to the public peace or safety, must order that he be, in the meantime, committed by the sheriff to a State lunatic asylum; and that on his becoming sane, he be re-delivered by the superintendent of the asylum to the sheriff.”
    
      "2. Imprisonment.] A prisoner after conviction and before removal to the place to which he is committed by the sentence, is in the legal custody of the sheriff, although actually in custody of the warden of the jail awaiting removal by the sheriff 3. Habeas corpus; service upon sheriff.] Habeas corpus directed to the sheriff having the legal custody of the prisoner, must be served upon the sheriff personally. Service at the jail upon the warden, who has the actual custody of the prisoner is effective only in cas 3 the sheriff can not, after due diligence, be found.
    
      I. Trial of an indictment.
    Thomas J. Mooney was arrested in Angus*, 1887, upon a charge of arson.
    He was subsequently indicted in the court of general sessions and brought before that court for trial in October.
    It was then suggested to the court that he was then at the time of his proposed trial, insane, and a jury was impaneled to determine that issue. The jury found that he was then insane, and the court thereupon made an order that he be committed to the asylum for the insane at Poughkeepsie, there to remain until he should be restored to his right mind.
    He remained in the asylum from October, 1887, to January, 1888, when he was reported restored to his right mind by the authorities of the asylum, and upon that report the court of General Sessions issued a bench warrant, and he was brought to this city for trial.
    The defense at the trial was, that the defendant had been insane in the previous August, when the alleged crime was committed, and a verdict of acquittal was rendered upon that ground.
    
      * Code Grim. Pro. § 454. “ When the defense is insanity of the ■defendant, the jury must be instructed if they acquit him on that ground, to state the fact with their verdict. The court must, there- ' upon, if the defendant be in custody, and they deem his discharge dangerous to the public peace or safety, order him to be committed to the State lunatic asylum, until he becomes sane.”
    
      It was then proposed to again commit him to the insane asylum as a person whose discharge was dangerous to the public peace and safety. It was contended, on his behalf, that having been adjudged insane in October, and sent to an asylum to remain until restored to his right mind, and he having been restored to his right mind, and the court having put him upon trial as a sane man, could not lawfully commit him to an asylum immediately upon the conclusion of the trial, as an insane man.
    
      Assistant District Attorney Macdona;, for the people.
    
      Abraham Suydam, for the defendant.
   The Court (per Gildersleeve, J.)

on the foregoing facts, ordered that the defendant be committed to the asylum for the insane at Utica.

II. Motion to compel the sheriff to make a return to a writ of hapeas corpus.

The defendant’s attorney, after the making of the order of commitment, sued out a writ of habeas corpus to test its validity.

The prisoner immediately after the commitment was made, was taken into custody by an-officer and deputy of the sheriff and taken to the city prison and there delivered into the custody of Thomas P. Walsh, the warden.

From the affidavit of the relator’s attorney it appears that he took the writ into the office of the sheriff and there saw the under-sheriff, and asked him if he would receive service of the writ. The under-sheriff told him that it must be served upon the clerk at the desk in the outer office. He then went to the clerk and handed the writ to him, at the same time informing him what it was.

The clerk took the writ into his hands, read it, and said it would be necessary to pay $3.18 as fees to the sheriff. The relator’s attorney then stated that he was acting as assigned counsel by order of Judge Gildebsleeve. No money was provided to pay fees and, that as he understood the law, the sheriff ■ had no right, in this city, to demand fees on a writ of habeas corpus. The clerk replied that according to his instructions unless the fees were paid on the writ he could not receive it, and thereupon handed the writ back, refusing to keep it.

The clerk was then informed that the relator was confined in the city prison, in the actual custody of the keeper, and that the writ would be served upon the keeper, and that the production of the relator according to the command of the writ would be insisted upon. To this the clerk made no reply. The relator’s attorney then went to the'city prison, and served the writ upon T. P. Walsh the keeper thereof, who received the writ and kept it.

On the day when the writ was returnable, the court of Oyer and Terminer was not in session.

Walsh made a return to the writ, alleging that the relator had been taken out of his custody by the sheriff, by virtue of a commitment requiring the relator to be taken to the State lunatic asylum.

The sheriff made no return whatever to the writ.

A motion was then made that the sheriff be compelled to make a return to the writ.

Abraham Suydam for the motion.

Assistant District Attorney 'Macdona, opposed.

Barrett, J.

The writ of habeas corpus was not served upon the sheriff as required by law. By section 1999 of the •Gode, such a writ must be personally served, in like manner as a summons issued out of the Supreme Court."’ By section •2003 it may be served by delivering it to the person to whom it is directed.” Section 2004 provides that “a sheriff upon whom complete service of a writ of habeas corpus is made, as prescribed in. this article, must obey and make return to the writ.”

In the present case, these provisions were entirely ignored, and there was not even a service upon the clerk in the sheriff’s office. If Mr. Suydam supposed that such service upon a clerk was sufficient, he should not have taken the writ back from the clerk, but should have left it where .he originally delivered it.

The law, however, as it would seem from the above quotations, requires a personal service, and this was not even •attempted. It is stated in the affidavit that the prisoner was in the sheriff’s custody, under the commitment of the court •of General Sessions, and this is, undoubtedly, a correct View •of the legal situation. Under such circumstances, the relator was bound to serve the writ upon the sheriff. Service at the jail by leaving the writ with the warden was only effective in case the sheriff could not, after due diligence, be found :(§ 2003)., The relator could not escape' the requirement to serve the sheriff personally, or to prove that he could not be found, with due diligence, by directing the writ to the warden.

The fact is, that the sheriff did his duty in executing the •commitment of the Sessions ; and he would have been derelict in his duty had he failed to do so because the relator’s attorney had obtained a writ which he did not choose to serve upon Mm. The sheriff would have been justified1 in using the power of the county to aid him in executing the commitment, had the warden interfered with him in faking his= prisoper. The latter was not in the warden’s custody, but in the sheriff’s. He was secured in a jail of which the-warden was keeper, but the sheriff was the only legal custodian under the commitment.

The motion must, therefore, be denied, in all its parts. •

Ordered accordingly. 
      
       The controversy in this county as to whether fees may be required by the sheriff upon habeas corpus turns upon the provisions of Code Civ. Pro. § 2000 and § 1488 of the N. Y. City Consolidation Act (L. 1882, o. 410).
      Section 2000 of the Code provides that “ where the prisoner is in the custody of a sheriff, constable, coroner or marshal, the service is not complete unless the person serving the writ tenders to the officer the fees allowed by law for bringing up the prisoner.”
      Section 1488 of the Consolidation Act is as follows: “ There shall be no costs or fees charged or received upon any proceeding upon writ of habeas corpus, either by the judge granting them, or by the officers serving them, or the jailor obeying their orders.”
     