People ex rel. Bedell v. Kinney

24 A.D. 309, 13 N.Y. Crim. 21, 1 Liquor Tax Rep. 242, 48 N.Y.S. 749

Opinions

Follett, J.:

The relator was sentenced January 23, 1897; the habeas was issued April 19, 1897 ; and May 7, 1897, the order appealed from was granted and entered, which directed that the relator be discharged July 23, 1897. It is conceded that the part of the judgment adjudging that the relator be imprisoned for six months is legal and regular. The writ of habeas corpus is a writ of liberty, and relief cannot be granted by virtue thereof until the relator is entitled to his liberty. The proceedings were premature, and the writ should have been dismissed. (People ex rel. O'Brien v. Woodworth, 78 Hun, 586; People v. Sutton, 24 N. Y. St. Repr. 726; S. C., 6 N. Y. Supp. 95; People ex rel. Trainor v. Baker, 89 N. Y. 460.)

The order should be reversed and the proceedings dismissed.

All concurred, except Ward, J., dissenting.