Lewis v. Carter
| Decision Date | 09 January 1917 |
| Citation | 115 N.E. 19,220 N.Y. 8 |
| Parties | LEWIS, Dist. Atty., v. CARTER et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Mandamus by Harry E. Lewis, as District Attorney of Kings County, against James M. Carter and others, individually and as the Board of Parole for State Prisons, and John Bassi, alias Clarence Bessey. From an order of the Appellate Division (166 N. Y. Supp. 373), affirming an order of the Special Term, denying motion for peremptory writ, petitioner appeals. Orders reversed, and peremptory writ issued.
Ralph E. Hemstreet, of Brooklyn, for appellant.
Edward G. Griffin, of Albany, for respondents.
The appellant seeks a peremptory writ of mandamus, compelling the board of parole of state prisons to reconsider and rescind a parole granted by the board to John Bassi. Thus far he has failed.
In December, 1902, Bassi was indicted for, and upon trial found guilty by the verdict of the jury, in Kings county, of the crime of burglary in the third degree, a crime punishable by imprisonment in a state prison. Penal Law (Consol. Laws, c. 40) § 407. Sentence upon the verdict was suspended during his good behavior. In June, 1914, he was indicted and convicted in Kings county for criminally receiving stolen property, and thereupon was sentenced to imprisonment in the state prison for the term of three years. The Penal Law prescribed that an indeterminate sentence, and not a definite sentence (Prison Law [Cons. Laws, c. 43], section 230), should be given to a convicted person (except when convicted for murder first or second degree), who never before had been convicted of a crime punishable by imprisonment in a state prison (Penal Law, § 2189). He, therefore, was sentenced as a person who had before been so convicted. He entered upon the service of the term. In November, 1915, the board of parole, upon his application, paroled him from December 15, 1915. The parole was granted under section 211 of the Prison Law, which was:
[1] The chief question between the counsel for the different parties, in their briefs and arguments, is, Has Lewis, as the district attorney of Kings county, the authority to institute this proceeding? The Attorney General, in behalf of the respondents, asserts that upon the conviction and imposition of the sentence the prosecution and therewith the jurisdiction and authority of the district attorney ceased, and the Attorney General of the state is the only public officer authorized to invoke the aid and processes of the court in relation to the execution of the sentence. We have decided that the district attorney of Kings county is authorized to institute the present proceeding.
At common law, as administered in England or the American colonies, the office of Attorney General existed; that of district attorney did not. The Attorney General was, speaking broadly, the chief law officer of the sovereign, charged with the duties of protecting the revenues and property of the sovereign, of securing, through the prosecution of persons accused of criminal offenses, the peace and safety of the people, of securing the lawful occupation of public offices and the lawful exercise of public grants, franchises, and corporate and trust powers. The first Attorney General of the state was appointed by the Constitutional Convention of 1777, together with other officers deemed necessary to establish the new state government. The first Constitution, that of 1777, did not make direct or express provision for the office. It provided for a council of appointment by whom all officers other than those who, by the Constitution, were directed to be otherwise appointed should be appointed. In 1796 the Legislature passed an act entitled:
‘An act making provision for the more due and convenient conducting public prosecutions, at the courts of oyer terminer and gaol delivery, and general sessions of the peace.’ Chapter 8.
The act divided the state, except the city and county of New York, into seven districts, and enacted that for and in each district a resident proper person of the degree of counsel in the Supreme Court should be appointed to the office thereby created of Assistant Attorney General with the duty to attend criminal courts of the district, ‘manage and conduct all suits and prosecutions for crimes and offenses cognizable in the said courts,’ and as to the districts the duty of the Attorney General in such respect, except as especially imposed, should cease.
In 1801, chapter 146 of the laws of that year was adopted. It created the office of district attorney in each of the seven districts, attaching to the office the duties of the office of Assistant Attorney General. It continued the duty of the Attorney General ‘to conduct all public prosecutions, at the courts of oyer and terminer and gaol delivery in the city and county of New York.’ It contained the provision:
‘Provided, nevertheless, that it shall be lawful for the person administering the government of this state, or any judge of the Supreme Court by writing under his hand to require the Attorney General to attend the court of oyer and terminer and gaol delivery to be held in any county, and it shall be the duty of the Attorney General to attend accordingly, and thereupon to conduct at such court all public prosecutions; and the district attorney for such district, shall in such matters as appertain to his office, and shall be required of him by the Attorney General, aid in conducting the same. * * *’
A similar proviso was in the act of 1796, the Assistant Attorney General being therein charged as was the district attorney in the act of 1801. 2 Lincoln's Const. Hist. of New York, pp. 526-531; People v. Miner, 2 Lans. 396. In 1818 a statute was passed repealing the act of 1801 and providing for the appointment of a district attorney in each county, charged with the duties imposed by the act of 1796 upon the Assistant Attorney General and by the act of 1801 upon the district attorneys. Laws of 1818, c. 283. The Revised Statutes of 1828 provided a district attorney in each county ‘to attend the courts of oyer and terminer and jail delivery, and general sessions, to be held from time to time, in the county for which he shall have been appointed; and to conduct all prosecutions for crimes and offenses cognizable in such courts.’ 1 Rev. St. pt. 1, c. 12, tit. 2, § 89. The language has been transmuted into the following:
‘It shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected or appointed. * * *’ County Law (Cons. Laws, c. 11) § 200, subd. 4.
A prosecution for crime, within the meaning of this statutory language, includes accomplishing the imposition of the punishment. All the means provided by the law to bring conviction, sentence, and the adjudged punishment to a criminal offender constitute the prosecution for the crime committed by him. It is a part of the prosecution to effect the delivery of the convicted person to the prison authorities, in accordance with the judgment of conviction. In case the sheriff of Kings county had, in the case here, in violation of the statute (Code of Criminal Procedure, § 489), refused or neglected to enter upon the...
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