Opinion
January 19, 1906.
George Addington, District Attorney, and Robert H. McCormic, Assistant District Attorney, for the appellant.
William E. Woollard, for the respondent.
The relator seeks his liberty without serving his sentence, on the sole ground that the certificate of conviction by which he is held by the sheriff is improper and defective in not stating the time when, the place where and the person from whom the larceny was committed. By section 485 of the Code of Criminal Procedure the judgment of conviction is required to state "briefly the offense for which the conviction has been had," and it was held the words "assault in the third degree" were a sufficient compliance with that requirement, as it named the offense used by section 219 of the Penal Code. ( Matter of Bartholomew, 106 App. Div. 371. )
In the case at bar the certificate of conviction was made by the justice of the peace in the form required by section 721 of the Code of Criminal Procedure in such case. Where that section says, "briefly designating the offense," is inserted the words "petitlarceny," which is the precise name of the offense as defined by section 532 of the Penal Code, and the Bartholomew case holds that a sufficient designation of the crime.
Section 724 of the Code of Criminal Procedure declares that a certificate of conviction in the form required by sections 721 and 722 is conclusive evidence of the facts stated therein. There is no allegation here that the judgment (which the court makes under section 717 of the Code of Criminal Procedure) is void or defective, as was claimed in the Bartholomew case.
"A commitment is a warrant, order or process by which a court or magistrate directs a ministerial officer to take a person to prison or to detain him there." ( People ex rel. Allen v. Hagan, 170 N.Y. 46, 49.)
The form used in the Code of Criminal Procedure is substantially an adoption of the old common-law form as described in the above case.
"Whenever the question has arisen in this court concerning the sufficiency of such a commitment it has been decided substantially in accordance with the principles above stated, although it has been held that the statement of the crime in the commitment, according to its statutory definition, was sufficient. ( People v. Johnson, 110 N.Y. 134.)" ( People ex rel. Allen v. Hagan, supra, 50.)
In People ex rel. Sullivan v. Sloan ( 39 App. Div. 265) the justice followed the form of the statute in making the certificate, and it did not state the time or the place of the larceny or that it was committed in the county. It was held sufficient.
The certificate in question is in the statutory form, and is sufficient. The order appealed from, therefore, is reversed, the writ of habeas corpus quashed and the relator remanded to the custody of the said sheriff as custodian of said penitentiary, to serve the balance of his term.
All concurred.
Order reversed, writ of habeas corpus quashed, and relator remanded to the custody of the sheriff of Albany county, as custodian of the penitentiary, to serve the balance of his term.