People ex rel. Liss v. Superintendent of Women's Prison

• Decision Date: 05 March 1940
• Citation: 282 N.Y. 115,25 N.E.2d 869
• Parties: PEOPLE ex rel. LISS v. SUPERINTENDENT OF WOMEN'S PRISON et al.
• Court: New York Court of Appeals Court of Appeals

282 N.Y. 115

25 N.E.2d 869

PEOPLE ex rel. LISS

v.SUPERINTENDENT OF WOMEN'S PRISON et al.

Court of Appeals of New York.

March 5, 1940.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding by the People of the State of New York, on the relation of Beatrice Liss, against the Superintendent of Women's Prison and others for a writ of habeas corpus. From an order of the Appellate Division of the Supreme Court in the Second judicial department, entered May 29, 1939, 257 App.Div. 865, 13 N.Y.S.2d 787, which reversed an order of Special Term sustaining a writ of habeas corpus, relator appeals.

Order of the Appellate Division reversed and that of the Special Term affirmed. Joseph A. Solovei, of Brooklyn, and Harold H. Corbin, of New York City, for appellant.

William F. X. Geoghan, Dist. Atty., of Brooklyn (Henry J. Walsh, of Brooklyn, of counsel), for respondents.

LOUGHRAN, Judge.

This is a habeas corpus proceeding brought to procure the release of the relator-appellant from the custody of the respondent, as warden of a house for the detention of women. The case is stated in a stipulation submitted by the parties in substitution of the minutes of the hearing.

This stipulation first recites: ‘That on December 6, 1938, an indictment was returned by the grand jury for the Eastern District of New York against Beatrice Liss (the relator) and another, which charged a violation of Title 21, United States Code, Sections 173, 174, 21 U.S.C.A. ss 173, 174, and Title 26, United States Code, Sections 1040 and 1043(a), 26 U.S.C.A. ss 1040, 1043(a), which said indictment resulted from a discovery by police officers of the Police Department of the City of New York on December 3, 1938, in the home of said relator, at No. 716 Ocean Parkway, in the Borough of Brooklyn, City and State of New York, of a quantity of narcotics, to wit: morphine. The trial of said indictment was held in United States District Court for the Eastern District of New York, before Hon. Grover M. Moscowitz, United States District Judge and a jury, on December 22nd and 23rd, 1938, and resulted in a verdict of acquittal as to the relator.’

The Federal indictment so described was found against the relator and her husband. It is stipulated that in respect of the husband the Federal court charged the jury as follows: ‘All you have to consider is count one so far as he is concerned. As I have read to you, the possession of narcotics shall be deemed sufficient evidence to authorize a conviction unless the defendant explains the possession to the satisfaction of the jury. He has got to explain, it seems to me, a lawful purchase or possession of that drug. However, that is for you to say upon this evidence.’ It is stipulated that the Federal court said to the jury respecting the relator: ‘This defendant, Beatrice Liss, lived with him, with knowledge that her husband had these narcotics there. Was she aiding or abetting or assisting him? That is for you to say upon the testimony and the testimony alone.’ Thus it appears that the basis to the prosecution of the relator in the Federal court was her alleged possession of a quantity of morphine contrary to the Federal narcotic laws. See U.S.Code, tit. 21, s 174, 21 U.S.C.A. s 174.

The stipulation further shows these facts: ‘An informaton was filed against said Beatrice Liss, relator-respondent herein, in the Court of Special Sessions of the City of New York, County of Kings, which charged a violation of Public Health Law, section 422, Consol.Laws c. 45, said information having been based upon the possession of the identical narcotics found at the home of said relator, at No. 716 Ocean Parkway, Brooklyn, New York, on December 3, 1938, as set forth in the indictment tried before United States District Judge Moscowitz and a jury on December 22nd and 23rd, 1938 * * *. Substantially the same testimony was offered by the prosecution at the trial of said information in the Court of Special Sessions, County of Kings, as was relied upon by the government at the trial of the indictment in the United States District Court for the Eastern District of New York.’

By section 422 of the Public Health Law, Consol.Laws, ch. 45, the unauthorized possession of any narcotic drug is made unlawful. Punishment therefor is prescribed by the Penal Law. Public Health Law, s 444; Penal Law, Consol.Laws, c. 40, ss 1751, 1751-a. The pertinent sections of the Public Health Law are parts of article 22 thereof, the ‘Uniform Narcotic Drug Act.’

Before she was sentenced by the Court of Special Sessions the relator instituted this habeas corpus proceeding. The writ was sustained by the Supreme Court at Special Term and dismissed at the Appellate Division. 257 App.Div. 865, 13 N.Y.S.2d 787. We now review the order of the Appellate Division on this appeal by the relator.

‘No person shall be subject to be twice put in jeopardy for the same offense.’N.Y.Const. art. 1, s 6. This constitutional guaranty is invoked by the relator in opposition to the present prosecution against her in this State for what she asserts is the same offense of which she was acquitted in the Federal court. She is...