293 N.Y. 361, People ex rel. Wachowicz v. Martin

Citation:293 N.Y. 361
Party Name:People ex rel. Wachowicz v. Martin
Case Date:July 19, 1944
Court:New York Court of Appeals

Page 361

293 N.Y. 361



WALTER B. MARTIN, as Warden of Attica State Prison, Defendant. THE PEOPLE OF THE STATE OF NEW YORK, Appellant.

New York Court of Appeal

July 19, 1944

Argued March 9, 1944.

Page 362


Nathaniel L. Goldstein, Attorney General (Orrin G. Judd and Wortley B. Paul of counsel), for appellant. I. The sentence based upon the plea to attempted grand larceny in the second degree, was a valid conviction and the commitment thereunder cannot be interfered with. (People ex rel. Prince v. Brophy, 273 N.Y. 90; People v. Scobie, 257 A.D. 854, 281 N.Y. 796; People v. Rosen, 251 A.D. 584, 275 N.Y. 627; People v. Farley, 252 A.D. 811, 277 N.Y. 617;

Page 363

People v. Resnick, 21 N.Y.S.2d 483; People v. Miller, 143 A.D. 251, 202 N.Y. 618; People v. McDonnell, 92 N.Y. 657; People v. Miles, 289 N.Y. 360; Chicago Life Insurance Co. v. Cherry, 244 U.S. 25; Chicot County Dist. v. Bank, 308 U.S. 371; People ex rel. Carr v. Martin, 286 N.Y. 27; People ex rel. Bedell v. Foster, 132 A.D. 116; Patton v. United States, 281 U.S. 276; People v. Cassidy, 213 N.Y. 388; Matter of Grae, 282 N.Y. 428.)II. Relator cannot by writ of habeas corpus test the validity of the indictment and his plea of guilty thereunder. (People ex rel. Prince v. Brophy, 273 N.Y. 90; People ex rel. Schneider v. Hayes, 108 A.D. 6; People ex rel. Todak v. Hunt, 153 Misc. 783, 243 A.D. 859; People v. Hammersmith, 229 A.D. 385; People ex rel. Fryer v. Brophy, 149 Misc. 562, 241 A.D. 653; People v. Giordano, 114 Misc. 62, 231 N.Y. 633; The People v. D'Argencour, 95 N.Y. 624; People ex rel. Krohn v. Thomas, 133 Misc. 145; People v. Miles, 289 N.Y. 360.)

No appearance for respondent.


The relator was indicted in January, 1941, by the Grand Jury of Erie County. In the first count of the indictment he was charged with 'Burglary in the Third Degree, contrary to the Penal Law, Sections 400, 404', committed by feloniously breaking into and entering a dwelling house with intent to commit a crime therein. In the second count he was charged with 'Buying, Receiving, Concealing or Withholding Stolen or Wrongfully Acquired Property, contrary to the Penal Law, Section 1308, in that he * * * knowing the same to have been stolen and appropriated wrongfully in such manner as to constitute larceny, feloniously bought, received, concealed and withheld property stolen from Edna Mueckl.' Upon arraignment the relator pleaded not guilty but three months thereafter he withdrew his plea of not guilty and, in the presence if his counsel, pleaded guilty to 'Attempted Grand Larceny 2nd degree on 2nd count of the indictment.' Upon that plea he was convicted of attempted grand larceny second degree and on May 2, 1941, he was sentenced as a third offender to imprisonment for the term of not less than two years and six months nor more than five years.

Page 364

A defendant 'may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.' (Code Crim. Pro., § 445.) The crime of 'Attempted Grand Larceny 2nd degree' of which the relator has been adjudged guilty upon his plea of guilty is not 'necessarily included in that with which he is charged in the indictment', nor would the court have power to amend the indictment, even with the relator's consent, to include the crime of grand larceny. (People v. Miles, 289 N.Y. 360.)

'No person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury.'(N.Y. Const., art. I, § 6.) Until the Grand Jury has found an indictment accusing a person of an infamous crime, no court has jurisdiction to try a charge otherwise made or to accept a plea of guilty. The Legislature cannot confer upon the courts jurisdiction which the Constitution commands shall not be exercised by the courts. Since the Constitution commands that no person may be held to answer for a felony 'unless on indictment of a grand jury', the Legislature cannot authorize a court to pronounce judgment convicting a person of an infamous crime upon the plea of guilty where no accusation has been made by a Grand Jury (People ex rel. Battista v....

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