People ex rel. Pennenga v. Morhous

282 A.D. 1090, 126 N.Y.S.2d 165, 1953 N.Y. App. Div. LEXIS 5890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1953
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Washington County Special Term which dismissed a writ of habeas corpus. Appellant pleaded guilty to grand larceny, second degree, and was sentenced as a second felony offender for a term of from five to ten years, less jail time. He has been paroled and returned to prison for a violation of parole. His maximum term has not yet expired. Appellant argues here that his commitment to a State prison was illegal in that the indictments upon which he was convicted were defective. An objection to the form of an indictment is not within the scope of habeas corpus. Such an objection must be taken by demurrer (Code Grim. Pro., § 321). Relator, who was represented by counsel, failed to demur. Order unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.