People v. Ingber

• Decision Date: 29 May 1928
• Parties: PEOPLE v. INGBER et al.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 302

162 N.E. 87

PEOPLE

v.INGBER et al.

Court of Appeals of New York.

May 29, 1928.

Samuel Ingber and another were convicted of manslaughter in the first degree, the judgment was affirmed (222 App. Div. 804, 226 N. Y. S. 878), and they appeal by permission.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

John McKim Minton, Jr., of New York City, for appellants.

Joab H. Banton, Dist. Atty., of New York City (Felix C. Benvenga, and William B. Moore, both of New York City, of counsel), for the People.

CARDOZO, C. J.

On March 28, 1927, the defendants were convicted in the County Court of Queens County of the crime of robbery, committed February 25, 1927, and were sentenced to imprisonment for a term of years.

On June 14, 1927, they were convicted in the Court of General Sessions in New York County, upon their plea of guilty, of the crime of manslaughter in the first degree, committed February 6, 1927, and were sentenced to imprisonment for not less than 10 nor more than 20 years, this sentence ‘to commence at the expiration of the sentence to state prison pronounced in Queens County Court by Judge Adel on March 28, 1927.’

The question is whether there was power to make the second sentence cumulative rather than concurrent.

[1][2] By Penal Law (Consol. Laws, c. 40) § 2190:

‘Where a person is convicted of two or more offenses, before sentence has been pronounced upon him for either offense, the imprisonment, to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first or other prior term or terms of imprisonment, to which he is sentenced.’

By the same section:

‘Where a person, under sentence for a felony, afterwards commits any other felony, and is thereof convicted and sentenced to another term of imprisonment, the latter term shall not begin until the expiration of all the terms of imprisonment, to which he is already sentenced.’

Neither of these provisions controls the case at hand-not the first, for sentence had already been imposed for one of the offenses before conviction of the other, not the second, for the felony that is the subject of the later sentence was committed before the felony that is the subject of the earlier one.

[3] We think the discretionary power of the court to impose a cumulative sentence in cases not covered by the mandatory statute remains, undiminished, as it was at common law.

The statute prescribes an automatic rule in certain typical situations that seemed to call for special treatment. Almost invariably a prisoner brought up to be sentenced at the same time for two or more offenses is one who has been tried for the two offenses at the same term of court and before the same judge. People v. Liscomb, 60 N. Y. 559, 575,19 Am. Rep. 211. Even before the statute the common practice in such cases was to make the terms of imprisonment successive. Sometimes, however, the judge omitted through inadvertence to give that direction in the judgment. Cf. State ex rel. Meininger v. Breuer, 304 Mo. 381, at page 405, 264 S. W. 1. The presumption then was that the terms were meant to be concurrent. Kirkman v. McClaughry (C. C.) 152 F. 255;Zerbst v. Lyman (C. C. A.) 255 F. 609, 5 A. L. R. 377;Dickerson v. Perkins, 182 Iowa, 871, 166 N. W. 293, 5 A. L. R. 374. The aim of the statute, which goes back to the Revised Statutes (2 R. S. p. 700, § 11), was to make the inadvertence unimportant by prescribing a rule of succession irrespective of the form of judgment. This is made clear by the revisers' notes, where they say of the section:

‘New in form; generally declared in the sentence; but as it may be omitted, it is deemed useful to provide for it by law.’

A like mandatory rule was thought to be desirable where a convict while imprisoned under a sentence for one felony was thereafter guilty of another. These cases have been singled out and subjected to a rule whereby discretion is excluded. The statute is not in any true sense a direction to the judge as to the form or contents of the sentence. It is a direction to the jailor as to the term of the imprisonment. Though the sentence be silent, the statute gives the rule.

We find no token of a purpose to curtail discretionary power in situations left uncovered. Cases have often arisen and must often arise hereafter where a felon about to be sentenced in one court has been sentenced for another felony in the same court or another. Rigor v. State, 101 Md. 465, 61 A. 631,4 Ann. Cas. 719;Dickerson v. Perkins, 182 Iowa, 871, 166 N. W. 293, 5 A. L. R. 374;Ponzi v. Fessenden, 258 U. S. 254, 264, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879. Authority is overwhelming that at common law there is discretionary power in such circumstances to postpone the execution of the second sentence to the execution of the first. Blitz v. United States, 153 U. S. 308, 14 S. Ct. 924, 38 L. Ed. 725;Ponzi v. Fessenden, 258 U. S. 254, 264, 265, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879;Rigor v. State, 101 Md. 465, 61 A. 631,4 Ann. Cas. 719; Kite v. Com., 11 Metc. [Mass.] 581; State v. Mahaney, 73 N. J. Law, 53, 62 A. 265; Id., 74 N. J. Law, 849, 67 A. 1103;Henderson v. James, 52 Ohio St. 242, 39 N. E. 805,27 L. R. A. 290; Russel v. Com., 7 Serg. & R. [Pa.] 489. ‘Would it not be absurb, to make one imprisonment a punishment for two offenses? Nay, the absurdity does not end there, for unless imprisonment for the last offense is to begin where the imprisonment for the first ends, it would be impossible,under our system, to punish the offender, in certain cases, for the last offense, at all.’ Tilgham, C. J., in Russel v. Com., supra. Take the case, for illustration, where one convicted in a federal court and sentenced to confinement in a federal prison is tried in a state court, with the consent of the federal government, for an offense against the local law. Ponzi v. Fessenden, supra. In such conditions the common-law rule permits a cumulative sentence. Ponzi v. Fessenden, supra. If the effect of the statute is to require the terms to be concurrent, the second sentence is an idle gesture. Service in a federal prison will not expiate an offense against the dignity of the state. This is obviously so where the prisons are different. The result will not be varied if by accident the prisons are the same. Nothing short of obvious compulsion will lead us to a reading of the statute whereby the pains and penalties of crimes are shorn of all terrors more poignant than a form of words.

[4] The argument is made that Penal Law, § 22, excludes the exercise of common-law power, if it would otherwise exist. ‘No act or omission begun after the...