People v. Bauer , 44 N.Y. Sup. Ct. 407 ( 1885 )

Dykmak, J.

The defendant was indicted in February, 1885, in the Court of Sessions of Kings county, for permitting a building which he owned to be used for the purpose of registering bets and wagers, and plead guilty to the indictment.

The statute under which the indictment was framed provides that a person guilty of the offense charged therein, is punishable by imprisonment for one year, or by fine, not exceeding two thousand dollars, or both.

A fine of seven hundred aud fifty dollars was imposed on • the defendant, and he was also sentenced to imprisonment in the penitentiary for the term of three months. The defendant paid the fine and appealed to the Supreme Court from the judgment of conviction and the sentence. The complaint is against the sentence, and the claim is that the time fixed for the imprisonment is too short and therefore unauthorized.

If the validity of this complaint be assumed, a ready answer to it is that the defendant is unprejudiced by the error, and ought not to be heard against it. Being advantageous to him, he cannot assign it for error.

Proceeding, however, with the examination, we find the defendant to be punishable by imprisonment for one year, or by fine, or both. The statute does not declare that the defendant, or persons in like case offending, shall be punished by imprisonment for a year, or for not less than a year, or a fine, but that he is punishable or may be punished in that way. That is, the trial court is vested with discretion to punish a defendant on a conviction in one or both of the modes specified. Bearing in mind the rule prescribed for the construction of the Penal Code, by which all its provisions must be construed according to the fair import of the terms to promote justice and effect the objects of the law, it seems not unreasonable to assume that under the statute in question imprisonment may be inflicted for a term not exceeding a year.

But again, assuming all that can be conceded to the defendant’s insistance, he presents at most but an irregularity. His conviction is valid, and his sentence to imprisonment is alone nullified. The most that can be done for him therefore, on the appeal, is to reverse the judgment for error in the sentence, and remit the record to the court in which the conviction was had to pass such sentence as we direct. People v. Bork, 2 N. Y. Crim. Rep. 177.

We cannot revise the conviction, because it stands unchallenged ; no complaint is raised against it; and if we could' review the discretion of the trial court in laying the punishment of the defendant wre should find nothing to condemn.

It had jurisdiction of the person of the defendant and of the subject matter, and the sentence conforms to the provision of the statute, the only objection being that the length of the term is insufficient.

There was, therefore, no attempt to exert power beyond its jurisdiction. It did not exceed the time authorized by statute.

On this whole case, our conclusion is , that the judgment should be affirmed.

Barnard, P. J., and Pratt, J., concur.

On the appeal from the order dismissing the writ of habeas corpus, etc., the following opinion was delivered :

Dykman, J.

After the defendant was convicted on his own confession and sentenced to imprisonment for three months, and fined §750, he paid his fine and remained in the penitentiary for eight days. Then he sued out a writ of habeas corpus, and claimed his discharge because he had paid his fine, and the sentence to imprisonment was illegal and void. ■

The mistake consists in supposing the sentence to be void. It was at most, irregular, and the error could only be corrected by appeal. The defendant could not claim a full discharge. His conviction was regular, and it was within the power and jurisdiction of the court to fine him §2,000, and imprisonment for one year. He was fined §750, and imprisonment for three months. If that was erroneous the relief must come by appeal, and remanding the defendant should be affirmed.

Barnard, P. J., concurs. (Peatt, J., not sitting.)