People ex rel. Hubert v. Kaiser

150 A.D. 541, 27 N.Y. Crim. 410, 135 N.Y.S. 274, 1912 N.Y. App. Div. LEXIS 7163

Opinions

Miller, J.:

On March 22, 1901, the grand jury of the county of New York presented an indictment to the Court of General Sessions against Folke Engle Brandt containing three counts, charging him with the crimes of burglary in the first degree, grand larceny in the first degree, and criminally receiving stolen property, respectively. He appeared in court with counsel on March 25, 1901, and pleaded not guilty.. On March 28, 1901, by leave of the court, he withdrew his plea of not guilty and pleaded “guilty of burglary in the first degree,” óf which an entry was made upon the minutes of the court. It does not appear whether his counsel was in court at the precise time of changing his plea, but it does appear by an affidavit read on his behalf in this proceeding that at that time the judge presiding requested the affiant, then an attorney in good standing, who happened to be in court on other business, to ascertain whether he understood the proceeding, and, in compliance with that request, said attorney interrogated him and ascertained that he did. The stenographer’s minutes show that, after the plea of guilty was received, the prisoner was sworn and interrogated at length by the court respecting his antecedents and the circumstances .of the crime. In the course of that examination he admitted that he entered the dwelling house of Mortimer L. Schiff at night, gaming admission through a basement gate, an ash hoist and a door into the cellar; that he armed himself with a bowling pin and a carving knife, went to Mr. Schiff’s room, the location of which he knew, lay in wait for two hours, and upon Mr. Schiff’s return assaulted him with the bowling pin. He asserted that he found the basement gate open, the hoistway uncovered, and the cellar door partly open for ventilation; that his purpose was to obtain pecuniary assistance, and he denied that he took any articles of jewelry. Among other questions put to him and answers given were the following:

“ Q. You know now, at present, at this moment—you fully appreciate what you are saying, do you not ? A. Yes. Q. You know you have entered a plea of guilty, to an indictment charging you with the crime of burglary in the first degree ? A. Yes, sir. Q. You know what the word guilty means — you confess to the commission of that crime ? A. Yes.” At the close of that examination he stated: “ I have nothing more to say, but prefer to consult with my own lawyer.” On April 4, 1907, he appeared in court for sentence, represented by counsel, the attorney whom the court had asked on March twenty-eighth to ascertain whether he understood the proceeding, and Who, according to said affidavit, had in the meantime been requested by Brandt to represent him. Said counsel made an appeal to the court for clemency but, although he stated that both he and his client realized the gravity of the situation, he made no request for leave to withdraw the plea of guilty. He did, however, produce certain articles, which he said were found in the prisoner’s possession and belonged to Mr. Schiff, evidently the articles of jewelry which the prisoner had under oath on March twenty-eighth denied taking, and stated that the prisoner desired to give them up and to come before the court in a state óf deep repentance.” At the conclusion of the remarks of counsel, a detective sergeant was sworn, a report respecting the prisoner’s record made by the witness to an inspector of police was read, and a check was produced which the prisoner first denied, and then admitted, forging. At the conclusion of the proceedings on April fourth the court sentenced the prisoner to imprisonment in a State prison for the term of thirty years, and upon a commitment regular in form, reciting a conviction by confession of burglary in the first degree, he was committed to Sing Sing prison and later, pursuant to law, was transferred to Clinton prison. On February 9, 1912, a writ of habeas corpus returnable at the Special Term, New York county, was allowed by a justice of the Supreme-Court upon the petition of the relator, who styled himself “ the next friend of Folke Engle Brandt.” The defendant returned .that the prisoner was detained by virtue of a judgment of conviction of the Court of General Sessions of the Peace of the city and county of New York. A copy of the commitment was attached to the return, and the original was produced for the inspection of the court. A traverse, verified by the relator, “ to the best of his information and belief,’’ not by the prisoner as is required by section 2039 of the Code of Civil Procedure, was filed in which it was averred among other things that Brandt was never tried for the crime charged in the indictment and never, pleaded guilty. The indictment, the stenographer’s minutes of the proceedings thereon, a certified copy of the court minutes taken from the clerk’s minute book and the affidavit hereinbefore referred to were read in evidence, as the order appealed from recites, in support of the traverse, and upon the record thus made the' matter was submitted to the court for decision with the acquiescence of all parties:, and thereupon an order was entered discharging the prisoner from the custody of the defendant under the said judgment of conviction and remanding him to the custody of the warden of the city prison of the city of New York to await trial on the indictment of March 22,190Y. From that order as resettled, the Attorney-General and the district attorneys of New York and Clinton counties have appealed in the name of the People of the State of New York.

A preliminary question is presented by the respondent’s motion to dismiss the appeal on the ground that the_ order is not appealable, and that the appeal was not taken in accordance with the provisions of section 2058 of the Code of Civil Procedure, which provides:

“ An appeal may be taken from an order refusing to grant a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, or from a final order, made upon the return of such a writ, to discharge or remand a prisoner, or to dismiss the proceedings. Where the final order is made, to discharge a prisoner, upon his giving bail, an appeal therefrom may be taken, before bail is given; but where the appeal is taken by the people, the discharge of the prisoner upon bail shall not be stayed thereby. An appeal does not lie, from an order of the court or judge, before which or whom the writ is made returnable, except as prescribed in this section.”

It is stated that the prisoner has given bail pursuant to the second provision of the order appealed from, and what purports to be a copy of the bail bond. is to be found in one of the records before us. But plainly that is not the bail referred to in said section. The relator was discharged absolutely from the custody of the defendant, not conditionally upon giving bail. The direction for that discharge finally determined the proceeding, and it is of no consequence on this appeal-that a provision was incorporated in the order remanding the prisoner to the custody of some one other than the defendant to await trial on the indictment; though it maybe said in passing that it is not apparent how the prisoner is to be tried on an indictment to which he has pleaded guilty, so long as that plea stands. Moreover, the first sentence of the section quoted gives the unqualified right" to appeal from a final order discharging the prisoner. The succeeding sentence is permissive arid was plainly intended to authorize an appeal before bah is given, where the discharge, instead of being absolute, is conditional and to provide that in such case an appeal by the People should not stay the discharge of the prisoner upon giving bail.

But it is said that said section is invalid for suspending the privilege of the writ of habeas corpus in violation of subdivision 2 of section 9 of article 1 of the Constitution of the United States, and section 4 of article 1 of the Constitution of the State of ¡New York. That provision, with its prototype, section 70 of title 1 of chapter 9 of part 3 of the Eevised Statutes (2-R. S. 573), has been unchallenged as the statute law on the subject in this State since 1830. Appeals in the name of the People have been entertained without question by the General Term and the Appellate Division of the Supreme Court ¡and by the Court of Appeals. (Vide People ex rel. Utley v. Seaton, 25 Hun, 305; People ex rel. Sinkler v. Terry, 42 id. 273; People v. Carter, 48 id. 165; Matter of Scrafford, 59 id. 320; People ex rel. Dinsmore v. Keeper of Penitentiary, 125 App. Div. 137; People ex rel. Kuhn v. P. E. House of Mercy, 133 N. Y. 207.) The United States Supreme Court has frequently entertained appeals under an' act of Congress from judgments or orders discharging prisoners on habeas corpus. (Vide Matter of Neagle, 135 U. S. 1; Crowley v. Christensen, 137 id. 86; Harkrader v. Wadley, 172 id. 149.) Joseph H. Choate and James 0. Carter, who represented the prisoner in the Neagle case, evidently did not consider the point worth raising, and as far as the research of counsel goes, it has been raised in but one case, and in that was quite summarily disposed of by the court. (McRady v. Wilcox, 33 Conn. 321.) While it might be of historical interest, it is quite unnecessary in this case to determine the point whether at common law a writ of error would lie to review a decision on habeas corpus. Much learning on the subject was displayed in the celebrated case of Yates v. People (6 Johns. 337), the opinions in which went to the verge of being contentious. Chancellor Kent, who stoutly maintained that the writ of error would not lie at common law, nowhere suggested that a review of a decision on habeas corpus would suspend the privilege of the writ or in anywise impair its efficiency. In that case the writ of error was prosecuted by the prisoner, but Chancellor Kent contended that, if allowed to the prisoner, it must equally be allowed to the People. His argument was based upon authority and upon the principle that a decision on habeas corpus was not of the character of a final and definitive judgment, on wMch alone a writ of error lay at common law. '•

It is urged in support of the order appealed from that the Court of General Sessions had no power to permit the plea of not guilty to be withdrawn, and that the formal plea of guilty entered upon the minutes of the court, though never withdrawn, was nullified by the subsequent statements of the prisoner, showing that the element of breaking necessary to constitute the crime of burglary in the first degree was absent.

Pleas to an indictment are of three kinds: 1, a plea of guilty; 2, a plea of not guilty; and 3, a plea of a former judgment of conviction or acquittal of the crime charged. (Code Crim. Proc. § 332.) “Every plea must be oral, and must be entered upon the minutes of the court.” (Id. § 333.) If the defendant pleads guilty to the crime charged in the indictment, the plea must be entered in substantially the following form: “The defendant pleads that he is guilty.” (Id. § 334.) “The court may, in. its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” (Id. § 337.) “After a plea or verdict of guilty * * * the court must appoint a time for pronouncing judgment.” (Id. § 471.) Express statutory authority for allowing the withdrawal of a plea of guilty does not deprive the court of the power to allow the withdrawal of a plea of not guilty, and it seems strange to hear a power challenged which has been exercised without question since the earliest times. At common law obstinately standing mute upon arraignment was equivalent to a conviction in cases of the highest and lowest description of crimes, i. high treason and minor offenses. In other felonies the punishment of peine forte et dure, death by famine, cold and pressure was the consequence of silence until by 12 George III, chapter 20, that punishment was abrogated and it was enacted that a person standing mute on arraignment on any indictment for felony or piracy should be convicted of the offense. Confession was always regarded as the highest kind of conviction and could be received after plea of not guilty recorded even in the case of high treason. (1 Chitty Crim. Law, 425-429, and citations in marginal notes.) In some jurisdictions it is competent for the court to pronounce sentence of death on a plea of guilty alone. (Vide Green v. Commonwealth, 12 Allen, 155.) The prisoner then stood before the court convicted, on his plea of guilty, of the crime of burglary in the first degree. The cause was in the precise situation, as far as the power to pronounce sentence was concerned, as though a verdict of guilty had been rendered by a jury, and nothing short of a withdrawal of that plea with leave of the court could change that situation. A weelt intervened the plea and the- sentence. Every precaution appears to have been taken by the court to apprise the prisoner of the gravity of his situation and to make sure that he understood the proceedings and the possible consequences of a plea of guilty. He had the advice of two different counsel, and so far from requesting leave, or even intimating a desire, to withdraw his plea, he persisted in standing upon it.

It is a startling proposition that statements made in the desire to secure clemency by a person convicted of crime, whether upon a vei’dict or a plea, can have the effect of nullifying the conviction, or constitute ground for a discharge on habeas corpus, possibly aftér the death or disappearance of necessazy witnesses to prove the offense charged. Every judge of any experience in the administz’ation of the criminal law knows that such statements cannot as a rule be relied upon, and, surely the judge in this case was not bound to accept at its face value the statement of the prisoner that he found the basement gate, the ash hoist and cellar door of a Hew York city dwelling conveniently open in the night time for him to enter without being technically guilty of buz-glazy. Even upon the prisozier’s owzi. statement the manner in which he, entered the house meets the statutory definition of breaking. It is not indispensable to the conviction of the crime of burglary of a person, who in the night tizne without invitation,, right or lawful occasion enters another’s dwelling and therein commits a crime, that a witness should be produced who saw the unlawful entry. The woz’d “break,” as used in article 38 of the Penal Law relating to burglary, is thus defined by section 400, corresponding to section 499 of the Penal Code as it was in 1901:

“1. Breaking or violently detaching any part, internal or external, of a building; or,

“2. Opening, for the purpose of entering therein, by any means whatever, any outer door of a building, or of any apartment or set of apartments therein separately used or occupied, or any window,' shutter, scuttle, or other thing, used for covering or closing an opening thereto or therein, or which gives passage from one part thereof to another; or,

“3. Obtaining an entrance into such a building or apart-ment, by any threat or artifice used for that purpose, or by collusion with any person therein; or,

“4. Entering such a building or apartment by or through any pipe, chimney, or other opening, or by excavating, digging, or breaking through or under the building, or the walls or foundation thereof.”

This record discloses no error or irregularity which would justify the interference of this court even if the case were here on an appeal from the judgment of conviction. The question for decision on a writ of habeas corpus is confined within narrower limits, and in this case might have been disposed of on the bare statement that the court had jurisdiction of the defendant and of the subject-matter, the offense, which is conceded, and that, even if the traverse, verified “to the best óf his information and belief” by one who did not appear to have any knowledge or information upon the subject, was sufficient to raise an issue, the uncontroverted record evidence offered in support of the traverse established that the prisoner was convicted upon his plea of guilty and that the court was, therefore, empowered to pronounce sentence and render judgment. (See People ex rel. Danziger v. P. E. House of Mercy, 128 N. Y. 180.) Even if the record disclosed the grossest abuse of discretion, the most palpable and harmful errors, we could not consider them on habeas corpus.

The statute, section 2032 of the Code of Civil Procedure, also challenged as being unconstitutional, provides inter alia: “The court or judge must forthwith,” i. e., after examination into the facts alleged in the return and into the cause of imprisonment or restraint, “make a final order to remand the prisoner, if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally be so detained has not expired: * * * 2. By virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction; * * It would be a work of supererogation at this day to discuss or analyze authorities in Support of principles which have become elementary, but the occasion seems to require the restatement of them'. The writ of habeas corpus is not, and never has been, a writ of review. Its sole function is to relieve from unlawful imprisonment. And the sole inquiry upon it is whether the mandate or the judgment, by virtue of which the prisoner is detained, is void. Where it appears that the prisoner is detained by virtue of a final judgment of a court of competent jurisdiction, the court or the judge has no alternative but to remand the prisoner, unless it affirmatively appears that there was an utter want of power or jurisdiction to render the judgment. Every presumption must be indulged in support of the judgment. Error or the abuse of discretion in the exercise of jurisdiction does not constitute the want of jurisdiction. Though it is not necessary to cite authority in support of such familiar rules, we refer to the most recent decisions of the Court of Appeals of this State and of .the United States Supreme Court on the subject. (People ex rel. Scharff v. Frost, 198 N. Y. 110; Harlan v. McGourin, 218 U. S. 442; Matter of Gregory, 219 id. 210.) In the Scharff case, as here, the defendant was convicted on a plea of guilty. Subsequently, and. before sentence was pronounced, an event occurred of which the court was informed which was an absolute bar to judgment. But the (Court of Appeals held that there was not such utter lack of jurisdiction or power to pronounce judgment as entitled the relator to relief by habeas corpus.

One case is cited by the respondent which is said to bear some resemblance to this. (Gardiner v. People, 106 Ill. 76.) We fail to discover any similarity in the facts; of that case, but it is enough to say that the decision was made on a writ of error.

We have nothing to do with the sentence, except to determine whether it was in excess of the court’® power. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559.) Burglary in the first degree is punishable by imprisonment in a State prison for not less than ten years (Penal Law, § 407; Penal Code, § 507), and may be punished by imprisonment for life (Penal Law, § 2191; Penal Code, § 696).

The order should be reversed, the writ dismissed, and the prisoner remanded to the custody of the defendant.

Laugi-ilin, Clarke and Scott, JJ., concurred.