People ex rel. Bedell v. Foster

132 A.D. 116, 23 N.Y. Crim. 373, 116 N.Y.S. 530, 1909 N.Y. App. Div. LEXIS 1447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1909
• Status: Published

Opinion

Rich, J.:

Appellant is detained in the penitentiary of the county of New York under a sentence for one year upon a judgment of conviction for grand larceny in the second degree. He avers that he is imprisoned illegally in that the sentence pronounced against him is contrary to law; that the court was without jurisdiction to try him, and that the warrant or order under which he is imprisoned does not conform to the judgment of conviction.

The first contention is based upon the assumption that it was obligatory upon the court to sentence him to imprisonment in a State prison under the provisions of section 687a of the Penal Code. This assumption is erroneous. Under the provisions of section 699 of the Penal Code authority is vested in the court, when the term of imprisonment of a male convict for felony is fixed at one year or less, to direct imprisonment in a county penitentiary instead of in a State prison, and. section 687a applies only to a convict “ sentenced to a State prison.”

The contention of want of jurisdiction is predicated upon the fact that the indictment contains two counts, the first charges grand larceny in the second degree; the second, after averring the same facts, charges the crime of willfully and unlawfully taking and carrying away the same property which the first count charged him with having stolen. The crime charged in the first count is a felony ; in the second a misdemeanor. It is argued that in the absence of a certificate under the provisions of section 57 of the Code of Criminal Procedure the Supreme Court was without jurisdiction to inquire into the matter, and that the jurisdiction of the grand jury was limited by that of the court of which it is an appendage. This contention is without merit. The grand jury had jurisdiction of the felony charged, notwithstanding the same facts might constitute an additional and different crime. (Code Crim. Proc. § 279.) Having jurisdiction of the major crime, the court had jurisdiction of any Crime arising out of the same facts.

, Under the third assignment of error it is contended that the minutes of the trial court show that the defendant was convicted of both crimes charged in the indictment, while the certificate of conviction recites grand larceny in the second degree. It is sufficient answer to this contention to say that this does not appear by the reo . ord before us. The authority for holding the defendant is the certified copy of the entry of the judgment of conviction. (People ex rel. Trainor v. Baker, 89 N. Y. 466 ; People ex rel. Dauchy v. Pitts, 118 App. Div. 457.)

The order must be affirmed.

Woodward, Jenks, Gaynor and Burr, JJ., concurred..

Order affirmed, with ten dollars costs and disbursements.