Irving v. People

28 How. Pr. 205

• Court: New York Supreme Court
• Decided: November 15, 1864
• Status: Published

Opinions

By the court, The difference between this case and Eellinger’s is, that Eellinger was sentenced to be imprisoned for life,, a sentence authorized for no degree of burglary except burglary in the first degree; whereas Irving was sentenced to be imprisoned for teif years, a sentence authorized for burglary in the second degree. There was a general verdict of guilty—the indictment sufficiently and certainly charged burglary in the .second degree, and he was sentenced to imprisonment for a term of years allowed on a conviction for burglary in the second degree. I do not see how Fellinger’s case applies.

Sutherland, J.

It may be that the recorder, misled by the indorsement of the indictment in sentencing Irving, thought that he had been convicted of burglary in the first degree, whereas he had been qnly convicted of burglary in the second degree, but as his sentence was legal and allowable for burglary in the second degree, I see no ground for reversing the judgment. The statement at the foot of the record sent up, that the prisoner was “ tried and convicted by a jury duly impaneled and sworn, on an indictment for burglary in the first degree,” &c., cannot be true, if the other part of the record is correct, for the record shows that the indibtment was not for burglary in the first degree, but was for bui> glary in the second degree.

The judgment should be affirmed.