People ex rel. Fernandez v. Kaiser

CourtNew York Court of Appeals
Citation256 N.Y. 581,177 N.E. 149
PartiesThe PEOPLE of the State of New York ex rel. Leonard FERNANDEZ, Appellant, v. Harry M. KAISER, Warden of Clinton Prison, Respondent.
Decision Date14 April 1931

256 N.Y. 581
177 N.E. 149

The PEOPLE of the State of New York ex rel. Leonard FERNANDEZ, Appellant,
v.
Harry M. KAISER, Warden of Clinton Prison, Respondent.

Court of Appeals of New York.

April 14, 1931.


Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (230 App. Div. 646, 246 N. Y. S. 309), entered November 24, 1930, which affirmed an order of the Clinton County Court dismissing a writ of habeas corpus and remanding the relator to custody. The relator on October 28, 1926, was convicted of the crime of burglary in the third degree and sentenced to a term of one year in a penitentiary, which sentence he served. On October 5, 1927, while on trial on two charges of burglary in the second degree, the district attorney presented an information charging him with two previous convictions for felonies in other states. The court thereupon revoked the sentence which he had served and upon his admission in open court of the previous conviction sentenced him as a second offender and dismissed the charges under which he was being tried. Relator in this proceeding seeks release, claiming his sentence was in violation of section 6 of article 1 of the state Constitution as involving a second jeopardy.

[256 N.Y. 582]James B. McKenna, of Buffalo, for appellant.

John J. Bennett, Jr., Atty. Gen. (Leon M. Layden, of Whitehall, and Almon W. Burrell, of Albany, of counsel), for respondent.


PER CURIAM.

Order affirmed.

CARDOZO, C. J., and POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN, and HUBBS, JJ., concur.

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11 cases
  • United States v. Murphy, Civ. No. 9225.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 8 de março de 1963
    ...Consol.Laws c. 40; People v. Gowasky, 244 N.Y. 451, 458-460, 155 N.E. 737, 58 A.L.R. 9; People ex rel. Fernandez v. Kaiser, Warden, 256 N.Y. 581, 177 N.E. 149, cert. den. 284 U.S. 631, 52 S.Ct. 16, 76 L.Ed. 537.) The constitutionality of similar statutes in any State is beyond question, and......
  • Little v. Gladden
    • United States
    • Supreme Court of Oregon
    • 2 de agosto de 1954
    ...guaranty against double jeopardy. The judgment of the appellate division was unanimously affirmed by the Court of Appeals without opinion, 256 N.Y. 581, 177 N.E. 149, and certiorari was denied by the Supreme Court of the United States, 284 U.S. 631, 52 S.Ct. 16, 76 L.Ed. 537. This decision ......
  • State ex rel. Williams v. Henderson, 54061
    • United States
    • Supreme Court of Louisiana
    • 14 de janeiro de 1974
    ...after sentence on the underlying charge. George relies on People ex rel. Fernandez v. Kaiser, 230 App.Div. 646, 246 N.Y.S. 309, affirmed, 256 N.Y. 581, 177 N.E. 149, cert. denied 284 U.S. 631, 52 S.Ct. 16, 76 L.Ed. 537, for the interpretation of the statutory language involved. We note that......
  • United States v. Hunt, 1874-A.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 6 de agosto de 1936
    ...People v. Gowasky, 244 N.Y. 451, 155 N.E. 737, 58 A.L.R. 9; People ex rel. Fernandez v. Kaiser, 230 App.Div. 646, 246 N.Y.S. 309, affirmed 256 N.Y. 581, 177 N.E. 149. The time to appeal has expired. That being the fact, under certain circumstances the judgment might be brought on for review......
  • Request a trial to view additional results

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