People ex rel. Dawkins v. Frost

Appellate Division of the Supreme Court of New York

People ex rel. Dawkins v. Frost

129 A.D. 498, 23 N.Y. Crim. 111, 114 N.Y.S. 209, 1908 N.Y. App. Div. LEXIS 1336

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 1908

StatusPublished

Cited by2 cases

This text of 129 A.D. 498 (People ex rel. Dawkins v. Frost) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Dawkins v. Frost, 129 A.D. 498, 23 N.Y. Crim. 111, 114 N.Y.S. 209, 1908 N.Y. App. Div. LEXIS 1336 (N.Y. Ct. App. 1908).

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Opinion

Jenks, J.:

There was a single indictment with two counts, one for burglary in the third degree and one for grand larceny in the second degree. The judgment Avas guilty upon both counts as charged in the indictment. The court sentenced the relator to be imprisoned for the burglary in the said prison under an indeterminate sentence, the maximum to be 4 years and 5 months and the minimum 4 years, and for the grand larceny under an indeterminate sentence, the maximum to be 3 years and 1 month and the minimum 3 years, the second sentence to commence immediately upon the termination of the first.

The writ of certiorari to review a criminal case, save criminal contempt of court, is abolished ; the remedy is appeal. (Code Crim. Proc. § 515 ; Code Civ. Proc. § 2148.) A person is not entitled to writs either of habeas corpus or certiorari to inquire into the cause of his detention Avhen he is detained by virtue of a final judgment of a competent tribunal of civil or criminal jurisdiction. (Code Civ. Proc. §§ 2016-2019.)

Section 506 of the Penal Code provides as follows: “ A person who, having entered a building under such circumstances as to constitute burglary in any degree, commits any crime therein, is punishable therefor, as well as for the burglary; and may be prosecuted for each crime, separately, or in the same indictment.” We may glean from the indictment, and indeed it is not disputed, that it was laid pursuant to this section. The sentence under which the defendant is now serving was valid (Penal Code, §§ 507, 687a), and it has not expired. Hence the application for a writ to inquire under article 3 of title 2 of chapter 16 of the Code of Civil Procedure was premature. [People ex rel. Bedell v. Kinney, 24 App. Div. 309, and authorities cited; People ex rel. Trainor v. Baker, 89 N. Y. 460.)

The appeal is dismissed.

Woodward, Hooker, Gaynor and Miller, JJ., concurred.

Appeal dismissed.

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Jenks, J.:

There was a single indictment with two counts, one for burglary in the third degree and one for grand larceny in the second degree. The judgment Avas guilty upon both counts as charged in the indictment. The court sentenced the relator to be imprisoned for the burglary in the said prison under an indeterminate sentence, the maximum to be 4 years and 5 months and the minimum 4 years, and for the grand larceny under an indeterminate sentence, the maximum to be 3 years and 1 month and the minimum 3 years, the second sentence to commence immediately upon the termination of the first.

The writ of certiorari to review a criminal case, save criminal contempt of court, is abolished ; the remedy is appeal. (Code Crim. Proc. § 515 ; Code Civ. Proc. § 2148.) A person is not entitled to writs either of habeas corpus or certiorari to inquire into the cause of his detention Avhen he is detained by virtue of a final judgment of a competent tribunal of civil or criminal jurisdiction. (Code Civ. Proc. §§ 2016-2019.)

Section 506 of the Penal Code provides as follows: “ A person who, having entered a building under such circumstances as to constitute burglary in any degree, commits any crime therein, is punishable therefor, as well as for the burglary; and may be prosecuted for each crime, separately, or in the same indictment.” We may glean from the indictment, and indeed it is not disputed, that it was laid pursuant to this section. The sentence under which the defendant is now serving was valid (Penal Code, §§ 507, 687a), and it has not expired. Hence the application for a writ to inquire under article 3 of title 2 of chapter 16 of the Code of Civil Procedure was premature. [People ex rel. Bedell v. Kinney, 24 App. Div. 309, and authorities cited; People ex rel. Trainor v. Baker, 89 N. Y. 460.)

The appeal is dismissed.

Woodward, Hooker, Gaynor and Miller, JJ., concurred.

Appeal dismissed.

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Bluebook (online)

129 A.D. 498, 23 N.Y. Crim. 111, 114 N.Y.S. 209, 1908 N.Y. App. Div. LEXIS 1336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-dawkins-v-frost-nyappdiv-1908.

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