286 N.Y. 27, People ex rel. Carr v. Martin

Citation:286 N.Y. 27
Party Name:People ex rel. Carr v. Martin
Case Date:June 12, 1941
Court:New York Court of Appeals

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286 N.Y. 27



WALTER B. MARTIN, as Warden of Clinton Prison, Respondent. THE PEOPLE OF THE STATE OF NEW YORK, Appellant.

New York Court of Appeal

June 12, 1941

Argued April 21, 1941.

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John J. Bennett, Jr., Attorney-General (Henry Epstein, Patrick H. Clune and Everett D. Mereness of counsel), for appellant. The question decided by the Appellate Division was not properly reviewable under a writ of habeas corpus. (People ex rel. Bailey v. McCann, 222 A.D. 465; People ex rel. Levin v. Barr, 232 N.Y.S. 849.)

Morton M. Z. Lynn for respondent. Habeas corpus is the proper method for relator to seek his release. (People ex rel. Sherwood v. City of Buffalo, 127 Misc. 290; People ex rel. Holt v. Lambert, 237 A.D. 39; 262 N.Y. 511; People ex rel. Lichtenstein v. Langan, 196 N.Y. 260; People ex rel. Childs v. Knott, 187 A.D. 604; 228 N.Y. 608; Matter of Marceau, 32 Misc. 217; White v. Levine, 40 F. [2d] 502; Manning v. Biddle, 14 F. [2d] 518.)


The relator was indicted by the grand jury of Saratoga county upon charges of grand larceny. The indictment contained five counts. In two counts he

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was accused of grand larceny, first degree; in three counts he was charged with grand larceny, second degree. In March, 1940, he pleaded guilty of grand larceny, second degree, as charged in the third count which accused him of the appropriation of five rings 'owned by Rose Davin.' He was sentenced upon that plea to imprisonment for the term of not less than five years nor more than ten years as a second offender. In habeas corpus proceedings the relator thereafter challenged the jurisdiction of the court to sentence him to imprisonment upon his plea of guilt of that charge.

In his petition for a writ of habeas corpus the relator urges that the court was without jurisdiction and its judgment invalid on many grounds. Upon this appeal we need consider only the allegations 'that the complainant herein named as 'Rose Davin' was and is the defendant's legal lawful wife 'Rose Carr. "' And 'that the defendant could not steal his own property and the property alleged to have been stolen is and was the joint property of the petitioner, Charles [Chester] W. Carr, and his legal lawful wife, Rose Davin Carr.' The Clinton County Court dismissed the writ. The Appellate Division reversed and sustained the writ, stating: 'It appears that he was convicted of the crime of grand larceny for having stolen two rings from his wife. A husband may not be convicted for larceny from his wife.' (261 A.D. 865.)

It has been said that 'at common law crimes against the property of another cannot be committed by husband or wife against the property of the other, owing to the unity of husband and wife and the rights of the husband in the property of the wife.' (30 Corpus Juris, page 715, and cases there cited.) Under the provisions of the Domestic Relations Law (Cons. Laws, ch. 14) a married woman has 'all the rights in respect to property, real or personal * * * and to make contracts in respect thereto with any person, including her husband * * * as if she were unmarried.' (§ 51.) 'Husband and wife may convey or transfer real or personal property directly, the one to the

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other, without the intervention of a third person.' (§ 56.) 'A married woman has a right of action against her husband for his wrongful or tortious acts resulting to her in any personal injury as defined in section thirty-seven-a of the general construction law, or resulting in injury to her property, as if they were unmarried.' (§ 57.) These and other statutes have so changed the status of husband and wife that few vestiges are left of the common-law concept of the unity of husband and wife, or of the husband's right to possess and control his wife's chattels; and it was upon these concepts that the conclusion that neither husband nor wife can commit a crime through appropriation or destruction of the property of the other was based. The question whether that common-law rule survives the statutory changes in the status and mutual rights and obligations of husband and wife is not free from doubt. No such question was raised at the trial of the indictment and we do not reach that question unless it may be raised in habeas corpus proceedings.

A person claiming that he is unlawfully imprisoned is not entitled to a writ of habeas corpus 'where he * * * is detained by virtue of the final judgment or...

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