
    THE PEOPLE a. CAVANAGH.
    
      Supreme Court, Second District; General Term,
    July, 1855.
    
    MISDEMEANOR.-REQUISITES OR CONYICTION.
    Of the extent to which proceedings resulting in conviction of misdemeanor and sentence to imprisonment therefor, are reviewable on Habeas Corpus.
    In an entry of conviction of misdemeanor and sentence, in the minutes of the court, it is not necessary to state the particular facts constituting the misdemeanor of which the accused was found guilty. To state that he was convicted of “ misdemeanor ” is a sufficient compliance with the provisions of 2 llev. Stats., 738, § 5.
    Appeal from a decision upon babeas corpus granting the discharge of the defendant.
    John Cavanagh was tried and convicted at the Kings County Oyer and Terminer for violation of his duty as a commissioner of excise, and was sentenced to fine and imprisonment, in the county jail. Tie was subsequently discharged on habeas corpus, on two grounds. (The People v. Cavanagh, 1 Parker's Or. P., 588; Matter of Cavanagh, 10 Dow. Pr. P., 27).
    1. That the offence of which he was convicted was not sufficiently stated in the commitment ; the only statement being that be was convicted of misdemeanor.
    2. That under the act of April 5,1853 (Laws of 1853, ch. 110, §2), which provides that persons sentenced to imprisonment in Kings County for a period not less than thirty days, shall be imprisoned in tbe penitentiary instead of in the county jail, the prisoner could not legally be sentenced to imprisonment in the county jail.
    From the decision granting the discharge the present appeal was taken.
    
      H. C. Underhill, District Attorney, for the People.
    King, Iladdam, and A. M. Cree, for defendant.
    
      
       The following is the language of the commitment:—
      “ At a court of Oyer and Terminer, holden in and for the county of Kings, at the court-house in the city of Brooklyn, on the 12th day of September, in the year of our Lord 1854 — present, the Hon. Wm. Rockwell, justice presiding; Henry A. Moore, county judge; Nicholas Stilwell and Samuel S. Striker, justices of peace.
      “ The People of the State of New York ag’t John Cavanagh, convicted of misdemeanor.”
      Whereupon it is ordered and adjudged by the court, that the said John Cavanagh, for the misdemeanor aforesaid, whereof he is convicted, be imprisoned in the county jail of Kings County for the term of thirty days, and pay a fine of $250 ; and in default of payment of said fine be imprisoned for a further term, not exceeding six months.
    
   Brown, J.

Error committed by a criminal court, having jurisdiction of the offence and of the person of the prisoner, cannot be re-examined upon habeas corpus, whether the error occurred at the trial or is alleged to exist in the judgment rendered. The only remedy is by certiorari or writ of error. When it is alleged that the prisoner is in custody by virtue of legal process, the existence of the process, and its validity upon its face becomes a legitimate subject of inquiry, but there can be no re-examination of any matter wffiich occurred anterior to the judgment and warrant of commitment. Matters which entitle a prisoner to his discharge, such as the expiration of the period of time for which he was sentenced, a reversal of the judgment, an executive pardon, or the payment of the fine imposed upon him as a punishment, are subjects upon which the officer issuing the writ may hear proof, and when established constitute good cause for the prisoner’s discharge. “ "When the imprisonment is under process valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burthen of impeaching its validity, by showing a want of jurisdiction in the magistrate or court where it emanated. If he fail in thus impeaching it, his body is to be remanded to custody. Error, irregularity, or want of form, is no objection, nor is any defect which may be amended or remedied by farther entry or motion.” (3 Hill, 661. Note 31). The People v. Nevins, 1 Hill, 154. Case of the Sheriff of Middlesex, 11 Ad. & E., 273. The People v. Cassells, 5 Hill, 164).

Courts of Oyer and Terminer are courts of superior criminal jurisdiction, having power : — First, To inquire by the oath of good and lawful men of the same county, of all crimes and misdemeanors committed or triable in such county; and— Second, To hear and determine all such crimes and misdemeanors. (2 Rev. Stats., 2 Ed. 132, § 29). It is apparent, therefore, that the court of Oyer and Terminer of the county of Kings had jurisdiction over the offence of which the prisoner Cavanagh was convicted, and its jurisdiction over his person will be presumed. In Hart v. Seixas (21 Wend., 40), the record did not show that the court below had acquired jurisdiction by the service of process or the re-appearance of the defendant, and it was held that a court of general jurisdiction is not bound to show the regularity of its proceedings expressly, but that everything necessary to confer jurisdiction over the person of the defendant will be presumed. The learned justice who delivered the opinion, quoted with approbation the rule to be found in Peacock v. Bell, (1 Saund. 73), “ that nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so ; and nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly alleged.” (See also Foot v. Stevens, 17 Wend., 483).

It appeared by the return to the writ of habeas corpus in this proceeding, and also by the petition upon which it was granted, that the prisoner, John Cavanagh, was in the custody of the Sheriff of the county of Kings, in the county jail, by virtue of a commitment — being an extract from the minutes of the court duly certified by the clerk — which expressed that at a court of Oyer and Terminer, holden in and for the county of Kings, on the 12th day of September, 1854, before the Hon. W. Rockwell, one of the justices of this court, Henry A. Moore, county judge, Nicholas Stilwell, and Samuel Striker, justices, &c., John Cavanagh was convicted of misdemeanor. Whereupon it was ordered and adjudged by the court, that the said John Cavanagh, for the misdemeanor aforesaid, whereof he is convicted, be imprisoned in the common jail of Kings county for the term of thirty days, and pay a fine of $250, and in default of the payment of such fine, he be imprisoned for a further term, not exceeding six months.” The return was not traversed, except so far as to deny the sufficiency of the commitment, to detain the prisoner in custody.

Section 42, of the act concerning writs of habeas corpus, &c., (2 Rev. Stats., 469), directs, that if the returns show that the prisoner is detained in custody “by virtue of the final judgment of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree,” it shall be the duty of the officer before whom the proceedings are had, forthwith to order the prisoner to be remanded. The authority for the form of the commitment upon which Cava-nagh was detained, is to be found in section 5 of the act concerning judgments in criminal cases (2 Rev. Stats., 738, § 5), which requires the clerk, whenever a judgment upon any conviction shall be rendered in any court, to enter such judgment fully in his minutes, stating briefly the offence for which such conviction shall have been had. Section 11 of the same act provides that a transcript of the entry of such conviction, duly certified by the clerk, shall be delivered to the sheriff, which shall be sufficient authority for him to execute such sentence, which he shall execute accordingly.”

The learned justice before whom the proceedings under review were had, made an order that Cavanagh be discharged from his imprisonment upon the ground that the transcript of conviction was not evidence of the final judgment of a competent court of criminal jurisdiction, because no offence was stated. The entry asserts that the prisoner was convicted of misdemeanor, and the court thereupon adjudged that “ for the misdemeanor aforesaid whereof he is convicted, he be imprisoned,” &c. “The misdemeanor aforesaid whereof he is convicted,” is the offence particularly set out in the indictment and whenever the record was made up in pursuance of the section 4 of the act last referred to, it would have disclosed the particular acts which constituted the crime, and the nature and character of the misdemeanor of which the prisoner was convicted. In the transcript of the conviction, the crime is briefly stated as a misdemeanor, which is precisely what the act requires. No other term could have been employed more apt and significant; besides, it has.been shown that the want of form is no objection, nor is any defect or omission which may be supplied or remedied by further entry or motion. In the People v. Nevins, the role upon which the defendant was committed for a contempt, was quite as brief and inexplicit as the entry in the present case. The court say, the sum for the non-payment of which a man is committed for contempt should no doubt be specified by the rule, but that may be directly or by reference to a proceeding taken to ascertain the amount through the proper officer; whose report, on its being filed and confirmed, becomes the act of the court, and is then to be read as part of the rule, Id cerium est quod certum reddi po-test.” For illustration, the court refer to “ the little slip called a bail-piece, on which a man may be arrested and under a short commitment, endorsed by a judge, incarcerated either before or after judgment at the pleasure of his man-captors.” So, in this case, if it became material to know of what particular misdemeanor the prisoner was convicted, in order to determine that the commitment was legal, resort might have been had to the record, if one had been made up and filed, and if not, to the indictment upon which he was tried and convicted, and to which the entry in the minutes referred. But no resort to the record or the indictment was necessary to give effect to the entry as evidence of a conviction for a crime. It is expressed that the prisoner is convicted of misdemeanor, and for the misdemeanor aforesaid whereof he is convicted, that he be imprisoned, &c.

At the common law, the term misdemeanor is generally used in contradistinction to felony, and misdemeanors comprehend all indictable offences which do not amount to felony. (4 Black. Com., 5).

There are, it is true, a numerous class of offences — acts of omission and commission — which are specially declared by the statutes to be misdemeanors. There is also a general provision by section 45 of the act concerning offences punishable by imprisonment in the county jail and by fines (2 Rev. Stats., 582), which declares, “ that when the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed either in the same statute containing such prohibition, or in any other section or statute, the doing such act shall be deemed a misdemeanor.” Section 46 prescribes the punishment for such misdemeanors, which is imprisonment in the county jail not exceeding one year, or by fine not exceeding $250, or by both sucli fine and imprisonment. A misdemeanor is, therefore, a distinct and well defined offence, with its appropriate punishment declared by the statute. It was no more necessary in the entry of the conviction and sentence upon the minutes of the court to state or refer to the particular facts which constituted the misdemeanor than it would have been to set out or refer to the particular acts which constitute murder, manslaughter or larceny, had the prisoner been convicted and sentenced of either of those crimes. The offence is described in the entry by the name and designation given to it by the law, and that was all that could be required.

Let us suppose, (what I understand was actually the case,) that Cavanagh was one of the commissioners of Excise of the city of Brooklyn. That he united with his co-commissioners in doing some of the acts prohibited by the law concerning Excise and the granting of licenses. And that for this breach of public duty he had been indicted by the grand jury, and convicted at the Oyer and Terminer. Ilis offence would have fallen within the general provisions of section 45 of the act concerning offences punishable by imprisonment in the county jail and by fine. It would have been a misdemeanor, and by no other name could it have been appropriately and legally designated in the entry of the conviction and sentence.

I therefore conclude, that in making the order for the discharge of Cavanagh from his imprisonment, the learned justice erred. The moment it appeared that he was in the custody of the sheriff', upon the conviction and in execution of the sentence mentioned in the return, the injunction of section 42 of the act concerning writs of habeas corpus, &c., became positive and peremptory, and he should have been remanded.

There is no force in the point raised that Cavanagh should have been sentenced to the penitentiary, and not to the county jail. We must assume that the Oyer and Terminer determined it had the power to pronounce the sentence under which he was imprisoned. If it was an error to designate the county jail as the place of his confinement (which I by no means assert), it cannot be reviewed and corrected in this proceeding. It forms no ground for his discharge upon the habeas corpus.

Proceedings reversed, and the prisoner remanded, &c.  