132 A.D. 116, People ex rel. Bedell v. Foster

Citation:132 A.D. 116, 116 N.Y.S. 530
Party Name:PEOPLE EX REL. BEDELL v. FOSTER, SHERIFF.
Case Date:April 30, 1909
Court:New York Supreme Court Appelate Division, Second Department
 
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Page 116

132 A.D. 116

116 N.Y.S. 530

PEOPLE EX REL. BEDELL

v.

FOSTER, SHERIFF.

Supreme Court of New York, Second Department

April 30, 1909

Appeal from Special Term, Nassau County.

Habeas corpus and certiorari by the People, on the relation of George W. Bedell, against Joseph H. Foster, Sheriff of Nassau County. Judgment of dismissal, and relator appeals. Affirmed.

[116 N.Y.S. 531] H. Willard Griffiths, for appellant.

Franklin A. Coles, for respondent.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

RICH, J.

Appellant is detained in the penitentiary of the county of Nassau, 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, [116 N.Y.S. 532] 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...

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