
    The People ex rel. Nicola Trezza, App’lt, v. A. A. Brush, Warden, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Criminal law—Double punishment.
    Relator was convicted of the crime of murder in the first degree and sentenced to be executed, but the execution was stayed by an appeal to the court of appeals, which affirmed the conviction, and he was resentenced.. Pending the stay he was kept in solitary confinement. Held, that even if such confinement was improper pending appeal, his return thereto after resentence would not constitute a second punishment for the same offense; that the stay was only of the execution, and not of the right to detain the relator.
    Appeal from order dismissing a writ of habeas corpus granted upon the petition of Nicola Trezza, and denying his application for his discharge from imprisonment in the state prison at Sing Sing and remanding him to the custody of the warden of said prison.
    
      A. H. Dailey, for app’lt; James W. Ridgway (John F. Clarke, of counsel), for resp’t.
   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. 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, mannér and way, ana 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 and 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. Pro., § 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. Code Grim.-Pro., § 491; chap. 489, Laws of 1888.

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.

Dykman and Pratt, JJ., concur.  