
    (56 Misc. Rep. 429.)
    PEOPLE v. DE GRAFF.
    (Rensselaer County Court.
    November, 1907.)
    1. Criminal Law—Punishment—Fines—Jurisdiction.
    Under Code Cr. Proc. § 717, providing that, when defendant pleads guilty or is convicted, the Court of Special Sessions must render judgment of fine or imprisonment, but the fine cannot exceed $50, a fine of $100 for operating an automobile at an illegal rate of speed is beyond the jurisdiction of the court, though the statute provides such a fine for violation of the law fixing the time limit at which automobiles may be run.
    2. Same—Appeal—Void Judgment—Decision.
    Where the Court of Special Sessions imposes a fine in excess of its jurisdiction, the County Court on appeal cannot remit the record to the court below for the correction of the judgment by imposing a fine within the jurisdiction of the court, but must reverse the judgment.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, I 3223.]
    Howard A. De Graff was convicted of running an automobile at an illegal rate of speed, and appeals. Reversed.
    
      Chester G. Wager, Asst. Dist. Atty., for the People.
    Bender & Hinman, for defendant.
   TIERNEY, J.

This is an appeal from the Justice’s Court of the town of East Greenbush, Rensselaer county, from a judgment of conviction entered in that court on the 1st day of November, 1906, at which time the defendant was adjudged guilty of operating an automobile on the 28th day of October, 1906, on the Columbia turnpike, a highway of said town, at a rate of speed greater than one mile in three minutes of time, to wit, at the rate of one mile in one minute and thirty seconds; the same being in excess of the speed limit as provided by law. The defendant was arrested on the afternoon of October 28, 1906, and brought before the justice and some preliminary talk was had, and a memorandum was made by the justice which contained the name of the defendant, his residence, his occupation, the number of his automobile, the number of his badge, the time alleged by the complainant in which he had run one mile in violation of the law, “fined $25, refused to pay fine,” deposited $100 to appear before Jesse P. Van Ness, justice of the peace, Tuesday, November 1, 1906, at 2 o’clock in the afternoon, and pleads not guilty. From such report and return of the proceedings had at that time before the justice as are now before me, I must reach the conclusion that no trial was then had and no proper or legal conviction or judgment entered, and in fact it is not contended on the part of the people that any trial or conviction was had at this time, October 28, 1906.

There are numerous grounds set forth by the defendant for setting aside the judgment of conviction of November 1, 1906, principally among them that the court erred in its judgment and certificate of conviction in imposing a fine of $100, for the reason that the court had no jurisdiction to impose a fine exceeding $50, and therefore that the certificate and judgment of conviction were wholly void. A careful review of the statutes and the authorities submitted in support of this contention leads me to the conclusion that it is entirely correct, and that the 'judgment and certificate of conviction herein must be set aside. Section 717 of,the Code of Criminal Procedure reads as follows:

“When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon of fine or imprisonment or both, as the case may require; but the fine cannot exceed fifty dollars, nor the imprisonment six months.”

This section of the Criminal Code limits the jurisdiction of a Court of Special Sessions to a fine exceeding $50 or an imprisonment exceeding six months; and notwithstanding the fact that the statute provides that a fine of $100 may be imposed for a violation of the law fixing the time limit in which automobiles may be run upon a public highway, yet nowhere in that law is it provided that the jurisdiction of a Court of Special Sessions is extended, so as to make it possible for such court to impose a fine in excess of the provisions of section 717 of the Criminal Code. A fine of $100 might be imposed by a court of record.; but a Court of Special Sessions is a court of limited jurisdiction, and the limit of its power to punish is prescribed by section 717.

The further question naturally presents itself for consideration whether this court has power to modify the fine imposed by the justice of the peace, or whether it can send this case back to the Court of Special Sessions to pass a proper judgment. The judgment entered in this case was one which the court did not have power to make. It was therefore void, and the fine imposed thereunder was illegal; and this court has no right to enforce in whole or in part a void judgment. The appellate court is given the power to remit the record to the trial court in a case provided upon a judgment rendered upon an indictment, but the statute does not include Courts of Special Sessions; those courts not being courts of record, nor having jurisdiction to find indictments or tOigive judgment thereon. Therefore there is no power vested in this court to remit this case to the Court of Special Sessions for the purpose of correction or for imposing a penalty within the limit of the trial court’s jurisdiction. See People v. Carter, 48 Hun, 165; People ex rel. Stokes v. Riseley, 38 Hun, 280; People v. Nash, 12 N. Y. Wkly. Dig. 545; Lattimore v. People, 10 How. Prac. 336; People ex rel. Kane v. Sloane, 98 App. Div. 450, 455, 90 N. Y. Supp. 762.

These cases are authority for the proposition that, the fine being for a larger sum than the Court of Special Sessions was authorized to impose, the sentence was absolutely void and the judgment entered thereon unauthorized. Having reached this conclusion, it is unnecessary for me to review in detail the several other grounds upon which this appeal is based. The judgment of conviction herein should be reversed and declared null and void.

An order may be entered accordingly.  