The People, Ex Rel. v. . Kelly , 2 N.Y. Crim. 428 ( 1884 )

After conviction at the Otsego Sessions of the crime of assault in the third degree, the relator was sentenced to be imprisoned at hard labor in State prison for the term of one year. He was afterward brought before the county judge upon habeas corpus, and on return made by the sheriff that the relator was in custody under this judgment of conviction, he was remanded and the sheriff directed to carry out the judgment of conviction and sentence. Upon appeal to the General Term of the Supreme Court the order of the county judge was affirmed, and it was further ordered that the original judgment rendered by the Court of Sessions be carried into execution.

The court below was of opinion that the sentence was without authority of law and void, that the offense was a misdemeanor and punishable only by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both, as provided by section 15 of the Penal Code. In this conclusion we concur. But as the Court of Sessions exceeded its jurisdiction, its judgment cannot be enforced. It follows, therefore, that the order of the county judge and the judgment of the General Term, so far as they direct the judgment of the Court of Sessions to be carried into effect, should be reversed.

But the conviction is still valid and the prisoner not entitled to his discharge. He should be remanded to the sheriff of Otsego county in order that the Court of Sessions may deal with him according to law. (People, ex rel. Bork, v. Gilbert, 96 N.Y. 631; People, Respondent, v. Bork, Appellant, id. 188, decided June 3, 1884.) So far, therefore, as the order of the county judge directs the prisoner to be remanded to the custody of the sheriff, it is right, as is also the judgment of the General Term, so far as it affirms such direction, and to that extent they should be affirmed.

All concur.

Ordered accordingly.