
    SUPREME COURT—SPECIAL TERM—KINGS CO.,
    March, 1912.
    THE PEOPLE v. PHILIP QUARTARARO.
    (76 Misc. 55.)
    (1.) Possession of cocaine—Jurisdiction—Court cannot sentence under sec. 1752, Penal Laws, fob offense committed under sec. ' 1746.
    Where relator, who was not a physician, pleaded guilty in County Court to an indictment charging him with the unlawful possession of cocaine, a crime under section 1752 of the Penal Law and punishable by a sentence of ten years in a State prison, but the statement of the acts alleged as constituting the crime, to wit, that defendant on a certain day had cocaine in his possession with intent to sell same to-divers persons unknown, without the written prescription of a duly licensed physician, shows an attempt to violate section 1746 of said law punishable by imprisonment for a year, and a sentence to eleven months and twenty-nine' days in a penitentiary is excessive and illegal, as the court was without jurisdiction to impose sentence under section 1752 for an offense committed under section 1746.
    (2.) Same—Habeas corpus not proper remedy.
    The relator, however, is not entitled to be released on habeas corpus, but will be remanded to the trial court for sentence as though no judgment had been entered on his plea of guilty; the court may then sentence him under section 174"6, or may discharge him from custody upon a motion in arrest of judgment.
    Harfas corpus to inquire into the cause of relator’s detention after sentence upon a plea of guilty.
    
      James C. Cropsey, district attorney.
    
      Jacob M. Kornfeld, for the defendant.
   Crane, J.:

The indictment must set forth the crime charged and also a plain and concise statement of the acts constituting the crime "without unnecessary repetition. Code of Criminal Procedure, section 275 and 276.

An indictment which alleged a crime but did not state the acts constituting that crime would be bad. Likewise, an indictment which stated the acts without alleging the crime charged against the defendant would also be bad. Further, if the indictment charged one crime and the facts alleged showed that not that crime but some other had been committed, here also the indictment would be defective, as the indictment must not only charge a crime but allege the acts constituting the crime charged. People v. Dumar, 106 N. Y. 502; People v. Stark, 136 id. 538; People v. Klipfel, 160 id. 371; People v. Kane, 161 id. 380; People v. Corbalis, 178 id. 516.

In the latter1 case, although the indictment charged a crime, it was held bad as it did not contain a statement of the acts showing the commission of the crime charged, but in place thereof a recital of the statutes violated in the words of the statute.

The indictment in this case is clearly bad in that it charges the defendant with a crime punishable with ten years in state prison, whereas the acts alleged to constitute the crime show the commission of an entirely distinct offense punishable by a one-year term.

Sections 1746 and 1752 of the Penal Law define separate and distinct crimes' in no way connected. Section 1746 makes it a crime punishable by imprisonment for not more than one year for any person to sell cocaine except upon written prescription, of a duly licensed physician. Section 1752- makes it a felony punishable by imprisonment for not more than ten years for a person other than a physician to have in his possession any narcotic capable of producing stupor or unconsciousness with intent to administer the same to another without the latter’s consent.

To constitute an offense under section 1752, certain things must be alleged: First, that the defendant was not a duly licensed physician; second, possession of a narcotic capable of producing stupor or unconsciousness; third, an intent to administer the same to another without the latter’s consent.

The indictment against Philip Quartararo charges him with a crime under this section 1752 of unlawful possession of cocaine,” but in the statement of the acts constituting the offense it is not alleged that cocaine is a narcotic or compound capable of producing stupor or unconsciousness non constat, but that the quantity of cocaine in his possession (even assuming that the court took judicial notice of the properties of the substance, which I doubt) would not produce stupor or unconsciousness. ¡Neither do the facts state that the possession was with intent to administer the same to another without the latter’s consent.

What is set forth in the alleged acts constituting the crime is an offense under the other section 1746, in that the defendant, on a certain day, had cocaine in his possession with intent to sell to divers persons unknown, without the written prescription of a duly registered physician therefor.

Under the eases above cited and the sections of the Criminal Code, this indictment was clearly bad, and a demurrer thereto would have been sustained or a motion in arrest of judgment doubtlessly would have been granted.

The defendant pleaded guilty before the County Court under this indictment on December 21, 1911, but to which of the crimes he pleaded no one can tell from the record, as the plea was guilty.” He was sentenced to eleven months and twenty-nine days in the penitentiary where he now is.

This writ of habeas corpus has been obtained in order that this court may discharge him from an illegal dentention.

He is confined under the final judgment of a criminal court of record and cannot be discharged upon a writ of habeas corpus unless that court had no jurisdiction or no power to impose the sentence inflicted. People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Frey v. Warden, 100 id. 20; People ex rel. Scharff v. Frost, 198 id. 116.

As the County Court had jurisdiction of the defendant and jurisdiction of both offenses stated in the indictment, and is presumed in sentencing to have passed upon the form and sufficiency of the indictment,-1 doubt whether this court has power to discharge the prisoner on this writ because that indictment does not set forth a crime in accordance with the Criminal Code. People ex rel. Schneider v. Hays, 108 App. Div. 6. But it is unnecessary for me to pass further upon this point as the County Court had no power to impose the sentence which it did impose upon the defendant.

The indictment charged the crime of possessing narcotics, and the facts constituting the crime alleged an attempt to sell cocaine without a doctor’s prescription, that is, the crime was alleged a-s a violation of section 1752, and the acts alleged showed an attempt to violate section "1746. "When the defendant pleaded guilty he pleaded to the acts or facts set forth in the indictment, and that was an attempt to sell without a doctor’s prescription. It will he noticed that section 1746 makes the penalty not to exceed one year of imprisonment for a sale of cocaine without a doctor’s prescription. The indictment does not allege that the defendant sold any cocaine, but that he attempted to sell j he was only charged in the indictment with an. attempt to violate section 1746, not with a violation thereof, and, therefore, with his plea of guilty could only have been sentenced to one-half the maximum punishment or six months’ imprisonment. Penal Law, § 261. The court had no power to impose a term of eleven months and twenty-nine days for an attempt to sell without a prescription.

There is no doubt that these matters were not called to the attention of the county judge, as no demurrer was interposed and no motion made in arrest of judgment, the defendant merely withdrawing his plea of not guilty and pleading guilty. When the judge came to sentence he evidently saw by the indictment that the defendant was charged with having the un-lawful possession of cocaine, and imposed the one-year sentence ■under section 1752, making such an offense punishable in state prison for not more than ten years; but, as above stated, this was not the crime'to which the defendant pleaded guilty, as the plea was a confession of the acts charged, and the acts charged made an offense under section 1746. The judge, therefore, had no power to impose the sentence authorized by section 1752 for an offense committed under section 1746.

Therefore, the prisoner is detained under a judgment which the County Court had no power to impose.

However, he cannot be discharged, as the indictment alleges a crime under section 1746 and he has pleaded guilty thereto. I therefore direct that he be taken before the County Court for resentenee in accordance with the law as above stated'.

If no judgment has been entered for the reason that the judgment already imposed was unauthorized by law, the defendant; I take it, may move for an arrest of judgment and for his discharge, in which case all of these defects in the indictment will be brought to the attention of the County Court. If the County Court does not grant the motion and dismiss the defendant he may appeal from the judgment to the Appellate Division when these matters can properly be reviewed. Even if the county judge in denying the motion to arrest judgment should impose sentence, he no doubt will take into consideration the three months which defendant has already spent in jail.

When the defendant thus moves in arrest of judgment many •other defects will also appear in this very carelessly drawn indictment. Sections 1752; and 1746 have been jumbled together by the pleader. The indictment alleges that the defendant, not being a licensed pharmacist, druggist, physician, veterinarian or dentist, attempted to sell cocaine, whereas section 1746 permits anybody to sell .it upon the prescription of a duly registered physician, or permits wholesalers to sell it upon the written order of a pharmacist, druggist, physician, veterinarian. or dentist. In the unnecessary and improper verbiage used in the indictment it also alleges that the defendant, not being a wholesaler, attempted to sell cocaine without a certificate stating the name and address of the persons selling and furnishing the same. There is nothing in the statute which requires any such certificate or even mentions one.

Again, on a motion in arrest of judgment the impropriety of permitting the defendant 1x> plead to such an indictment would at once become apparent. If he should plead a former conviction upon a subsequent indictment, what has he been previously convicted of under his plea—unlawful possession or unlawful selling? Such an indictment should not stand.

Bather, therefore, than discharge the prisoner on this writ I shall remand him to the County Court for sentence as though no judgment had been entered on his plea and the County Court can then impose a proper sentence under section 1746 of the Penal Law for an attempt to sell cocaine, or else upon defendant’s motion to arrest judgment may discharge him from custody altogether. . . . ..... •.......

Judgment accordingly;  