
    The People of the State of New York ex rel. Richard F. Price, Relator, v. Patrick Hayes, as Warden of New York County Penitentiary, Respondent.
    Second Department,
    June 21, 1912.
    Habeas corpus — writ denied — conclusiveness of court record.
    Habeas corpus is not a writ of review, and errors of law and mere irregularities or errors of judgment committed by the court, whose judgment, decree or process is in question, cannot be inquired into or corrected thereunder.
    Where it appears from the return to a writ of habeas corpus that the ■ relator was indicted for grand larceny in the first degree as a second offense; that he was arraigned upon this indictment and pleaded “ not guilty ” with leave to demur or withdraw; that subsequently he withdrew his plea of not guilty and “pleads that he is guilty of the crime of petit larceny, ” and by order of the county judge was remanded for judgment of sentence, and it appears from an extract from the minutes of the court that the relator was duly sentenced, the writ should be dismissed, although the relator alleges that he never withdrew his plea of not guilty as charged in the indictment or pleaded guilty of the lesser crime, and thus attempts to raise a question of fact.
    This question was in issue before the court which sentenced the relator, and its record, certifying to the existence of the plea and showing the other jurisdictional facts, is conclusive.
    
      Return of a writ of habeas corpus.
    
      Richard F. Frice, relator, in person, and Nathan B. Chadsey, for the writ.
    
      Hersey Egginton, Assistant District Attorney [James C. Cropsey, District Attorney, with him on the brief], opposed.
   Woodward, J.:

This is a writ of habeas corpus made returnable before this court, to inquire into the cause of the imprisonment and detention of the relator Price in the New York County Penitentiary.

The writ of habeas corpus is regulated by the Code of Civil Procedure. By section 2016 it is provided that a person is not entitled to the writ “ Where he has been committed, or is detained, by virtue of the final judgment or decree, of a competent tribunal of civil or criminal jurisdiction,” and by section 2019 it is prescribed that the petition must state, among other things, that the petitioner “has not been committed, and is not detained, by virtue of any judgment, decree, final order, or process, specified in section 2016 of this act.”

If the imprisonment is alleged to be illegal the petition must state in what the alleged illegality consists (§ 2019), and if it appears that the prisoner is detained in custody by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, the court or judge must make a final order to remand him (§ 2032).

The relator avers in his petition herein that “he is not committed or detained by virtue of any process, or mandate issued by any court of the United States, or by any judge thereof, nor is he committed by virtue of any valid or legal final judgment or decree of a competent tribunal of civil or criminal jurisdiction,” but that he is detained and imprisoned solely by virtue of “ a certain false and void judgment of the County Court of the County of Kings, State of New York,” etc. What purports to be a copy of the judgment is set out in the petition, from which it appears that relator was convicted of petit larceny upon his own confession and plea of guilty under an indictment charging him with grand larceny, first degree, as a second offense, and was sentenced to the New York County Penitentiary for the term of eleven months and twenty-nine days and to pay a fine of $500, in default of which fine to be further imprisoned for a term not to exceed one day for each dollar of the fine.

Relator sets forth in his petition that on June 11, 1909, he pleaded “not guilty” to the indictment upon which he was so convicted, which plea, he avers, he “ has never withdrawn, altered or changed, and which plea of not guilty does in truth and in fact still stand unaltered to this day.”

It further appears from the petition that two other indictments were found against relator in November, 1909, by the grand jury of Kings county, in each of which he was charged with grand larceny in the second degree as a second offense, one of which was found upon the complaint of Hattie Christensen and the other upon the complaint of one Boekleman, and relator admits that he offered the plea of petit larceny in the Christensen matter, and avers that the offer was accepted, and that he thereafter withdrew his former plea of not guilty and plead guilty to petit larceny in accordance with his offer, and that he was before that informed and believed that the indictment under which he was afterward convicted and sentenced was to be dismissed by the court.

It is averred in the petition that the indictments found in November, 1909, were procured by trickery and fraud and that they were dismissed by the court after relator was sentenced.

It further appears from the petition that relator has heretofore sued out four separate writs of habeas corpus, and that in each instance the writ was dismissed and the relator remanded.

Habeas corpus is not a writ of review, and errors of law and mere irregularities or errors of judgment committed by the court whose judgment, decree or process is in question cannot be inquired into or corrected thereunder. They must be corrected by the court issuing the process, or in appellate proceedings.

Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree, are expressly, excluded from the benefit of the writ. No inquiry into the “legality or justice” of any mandate is- permitted, except as those terms include the questions of jurisdiction or power. (Code Civ. Proc. .§ 2032; People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 569; People ex rel. Farrington v. Mensching, 187 id. 8, 27; People ex rel. Scharff v. Frost, 198 id. 110, 115; People ex rel. Young v. Stout, 81 Hun, 336; affd., 144 N. Y. 699; People ex rel. Patrick v. Frost, 133 App. Div. 179, 185.)

It appears from the return to the writ in this case that the relator was indicted by. the grand jury of the county of Kings for the crime of grand larceny in the first degree as a second offense; he was arraigned upon this indictment on June 11, 1909, at a term of the County Court of Kings county and pleaded “not guilty ” with leave to demur or withdraw; that at a term of said County Court held on the 7th day of March, 1910, he again appeared and withdrew his plea of not ,guilty and “pleads that he is guilty of the crime of petit larceny,” and by order of the county judge was remanded for judgment of sentence.

It appears from an extract from the minutes of the County Court of Kings county that on the 28th day of March, 1909, relator was brought up before the county judge for sentence and the following took place:

.“Proclamation Made and Court Opened. Indicted for Grand .Larceny, 1st Degree, Second Offense, and convicted of Petit Larceny upon his own confession and plea of guilty. Being personally present and sworn says: My true name is Richard F.- Price; I am 38 years of age; I was born in Iowa; I reside at 198 Schermerhorn St.; I am a Reader; I am Mar-, ried; I can read and write; I am a Catholic; My Parents are dead; I am Temperate; I have been convicted, of Grand Larceny. Being asked if he had anything to say why the judgment of the law shordd not be pronounced against him and he having nothing to say than what he hath heretofore said, the Court pronounced judgment as follows: Wheretvpon it is Ordered and Adjudged by the Court that the said Richard F. Price, for the offense aforesaid, whereof he is convicted, be imprisoned in the New York County Penitentiary for a term of Eleven months and twenty-nine days and pay a fine of Five hundred dollars. In default of payment of said fine to he further imprisoned in the New York County Penitentiary one day for each dollar of said fine.”

And he was thereupon sentenced by the court to be imprisoned in the New York County Penitentiary for the term of eleven months and twenty-nine days and to pay a fine of $500, and in default of payment of said fine to be further imprisoned in said penitentiary for a term not to exceed one day for each and every dollar of said fine. It appears from the petition that the term of imprisonment' for eleven months and twenty-nine days has expired, and the relator is now detained by reason of his default in the payment of the fine imposed. When produced upon the return of the writ the relator made answer to the return under oath, in which he denies the validity and truth of the return of the defendant in each and every particular thereof.

It is not contended that the County Court of Kings county, by which the judgment of conviction was rendered and the sentence imposed, did not have jurisdiction of the crime charged in the indictment, or of the person of the relator, or that the court was incompetent by reason of any statutory disability of the judge who presided thereat.

As to the jurisdiction of the court to pronounce judgment, the only claim is that it was without jurisdiction for the want of a plea of guilty;’ that the court in pronouncing judgment and sentence transcended the law and was without jurisdiction because the relator had entered to the indictment against him his plea of not guilty, and had had no trial thereon.

Jurisdiction by the court to render the particular judgment as well as jurisdiction of the person of the defendant are prerequisites to a valid judgment in a criminal action

The County Court of the county of Kings has original jurisdiction to try and determine indictments found therein or sent thereto by the Supreme Court, including those for crimes punishable with death. (Code Grim. Proc. §§ 11, 39.)

The relator having been indicted for grand larceny, a crime consisting of different degrees, he might have been convicted of a degree inferior thereto (Code Crim. Proc. § 444), or of any crime the commission of which was necessarily included in that with which he was charged (Code Crim. Proc. § 445), and, therefore, a jury might have found him guilty of petit larceny; or, he might be sentenced therefor upon his plea of guilty. (Code Crim. Proc. §§ 332-335.)

It appears from the return to the writ that relator first plead not guilty, with leave to demur or withdraw, and that when subsequently arraigned for trial he withdrew the plea of not guilty and plead guilty to the crime of petit larceny, for which crime, he was subsequently sentenced.

Relator alleges that he never withdrew the plea of not guilty as charged in the indictment, or pleaded guilty of the lesser crime, and thus attempts to raise a question of fact.

This question was in issue before the court which rendered the judgment and pronounced the sentence, and its record certifying to the existence of the plea, and showing clearly and indisputably the other jurisdictional facts, is conclusive.

By that record the jurisdiction of the court as challenged must be determined, arid this court will not assume to go back of it to determine the disputed question of fact. (People ex rel. Tweed v. Liscomb, supra; O’Donoghue v. Boies, 159 N. Y. 87, 99; People ex rel. Hubert v. Kaiser, 150 App. Div. 541; People ex rel. Kemmler v. Durston, 119 N. Y. 569; People ex rel. Scharff v. Frost, supra.)

It is presumed that the doings of a court of record are regular ' and proper, that its jurisdiction was properly acquired, that its proceedings are legal and valid, and that its decisions are well founded and free from error.

The judgment in question here is regular on its face and is fully supported by the record.

It is further contended by relator that the sentence exceeds the maximum penalty-allowed by law for the offense of petit, larceny, and is, therefore, illegal arid void, and that the court did not have jurisdiction or power to pronounce a sentence of imprisonment for default in the payment of the fine imposed.

This contention is without merit. The punishment prescribed for petit larceny by the Penal Law (§§ 1299, 1937) is imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both.

It is prescribed by the Code of Criminal Procedure (§ 484) that a judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, “which cannot exceed one day for every one dollar of the fine,” and by section 487, that if the judgment be a fine and imprisonment until it he paid, the defendant must forthwith be committed to the custody of the proper officer, and be by him detained until the judgment he complied with.

The sentence and commitment are in exact accord with these provisions of law, and the punishment prescribed thereby applies to a person convicted of petit larceny. (People v. McTameney, 30 Hun, 505; Matter of Hallenbeck, 65 How. Pr. 401.)

But if the sentence had been erroneous, or one which the court had not the power to pronounce, it would not entitle relator to relief by habeas corpus. (People ex rel. Devoe v. Kelly, 97 N. Y. 212; People ex rel. Woolf v. Jacobs, 66 id. 8; People ex rel. Scharff v. Frost, supra; People ex rel. St. Clair v. Davis, 143 App. Div. 579; People ex rel. Bretton v. Schleth, 68 Misc. Rep. 307; People ex rel. Trainor v. Baker, 89 N. Y. 460.)

The writ should be dismissed and relator remanded to the custody of the warden.

Thomas and Rich, JJ., concurred; Burr, J., concurred in result; Jerks, P. J., not voting.

Writ dismissed and relator remanded to the custody of the warden.  