WRIT of habeas corpus to inquire into the cause of the detention of Adsin Knowlton, the relator, by Ambrose Sadler, superintendent of the Onondaga county penitentiary.

The facts appear in the opinion.

M. E. Driscoll, for relator.

C. H. Lewis, district attorney, for respondent.

VANN, J.-The return shows that, on the 21st of August, 1884, at a court of Special Sessions, held by a justice of the peace, the relator was duly convicted of the crime of petit larceny, and was thereupon sentenced to imprisonment in the Onondaga county penitentiary for the term of one year. A commitment in the usual form, reciting these facts, constitutes the authority and true cause of the imprisonment of the relator.

By section 56 of the Code of Criminal Procedure, jurisdiction is conferred upon courts of Special Sessions to hear and determine certain charges, and among others petit larceny. By section 535 of the Penal Code, petit larceny is declared to be a misdemeanor, and by section 15 a person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by statute, is punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both. There seems to be no other provision of law now in force fixing the punishment for this offense.

By section 717 of the Code of Criminal Procedure, the greatest punishment that can be inflicted by a court of Special Sessions upon any offender convicted before it, is a fine not exceeding $50, and imprisonment not exceeding six months. The magistrate who imposed sentence upon the relator apparently had in mind section 15 of the Penal Code, and disregarded section 717 of the Criminal Code. The sections cited from the Penal Code do not expressly nor impliedly repeal the section cited from the Criminal Code, as will be seen by comparing the last section of both Codes. Each Code provides

that when construed in connection with other statutes, it must be deemed to have been enacted on the fourth day of January, 1881. Criminal Code, § 963; Penal Code, § 727. Nor does it necessarily follow that the two Codes are inconsistent, for it may have been the intention of the Legislature when it conferred exclusive jurisdiction upon courts of Special Sessions to hear in the first instance a large number of offenses, to prevent those courts, usually held by inexperienced men, from inflicting as severe punishment for an offense as could be imposed by a court of record upon the removal of the case thereto. Code Crim. Pro. § 56, 57.

It is conceded on the part of the people that the court of Special Sessions had no power to sentence the relator for the term of one year. It is, however, contended that the whole sentence is not void, but only so much thereof as was unauthorized, and that hence the prisoner should be detained for the longest term that the court could have legally imposed.

If under any circumstance, or upon any state of facts, the court of Special Sessions had power to inflict the punishment specified in the commitment, it might be held that the error was not one that could be reviewed upon habeas corpus. People ex rel. Devoe v. Kelly, 32 Hun, 536. In such a case the relator might not be entitled to the writ, because his detention would be by virtue of the final judgment of a competent tribunal of criminal jurisdiction, and hence his only remedy would be to appeal, and have his sentence modified or corrected in that way. Id.; Code of Civ. Pro. § 2016. But this commitment shows upon its face that it was issued to enforce a judgment that the court not only had no power to render, but was actually prohibited from rendering. The judgment was not merely erroneous. It was not merely unauthorized. It was forbidden by law. The statute says that the court of Special Sessions may render judgment "of fine or imprisonment, or both, but the fine cannot exceed fifty dollars, nor the imprisonment six months." Code Cr. Pro. § 717.

The judgment is, therefore, one that the court could not under any circumstances have pronounced, and is as absolutely void as if the relator had been sentenced to death. People ex

rel. Tweed v. Liscomb, 60 N. Y. 559, 568. It is my duty to order the discharge of the prisoner.

NOTE.-There is an obvious distinction between the present case and People ex rel. Devoe v. Kelly, ante, p. 428. In the case at bar, the relator was undergoing a void sentence, in the latter case the prisoner was still in custody of the sheriff, under a valid judgment, and the void sentence had not yet been executed.

Court of Appeals.

October, 1884.

PEOPLE v. RYLAND.

(Affirming 1 N. Y. Crim. Rep. 123.)

WHEN COERCION OF WIFE BY HUSBAND NOT PRESUMED.-Evi DENCE.-SECTION 399, CODE CRIMINAL PROCEDURE.

The presumption of law that whatever of a criminal nature a wife does in presence of her husband is compelled by him, is only prima facie, and where she is not urged or drawn to the offense by him, but is an inciter of it, she is liable therefor.

Defendant by false statements and under a false name procured the check which was shortly afterwards presented, at a bank altered as to name of payee and raised as to amount, and paid. Held, that this was sufficient evidence tending to connect defendant with the commission of the forgery to corroborate further evidence of an accomplice. (Code Crim. Proc. § 399). Also held, that her offense being general participation in the originating, aiding and carrying out the plan by which the forgery was committed, her presence when her husband erased a portion of the check, preliminary, to her knowledge, as must be presumed from the evidence, to the subsequent alterations made in the check, was a step toward the commission of the crime for which she was responsible unless she acted under her husband's coercion.

Further held, that upon the evidence, defendant was a principal, not an accessory before the fact, and was chargeable as maker of the forged instrument.

APPEAL by defendant Elsie Ryland from a judgment of the General Term in the First Department, June, 1883, affirming a judgment of the court of General Sessions of New York, Hon. Frederick SMYTH, Recorder, presiding, of May 18, 1882, of conviction of forgery in the third degree.

The facts together with points of counsel are given upon the appeal to the General Term. 1 N. Y. Crim. Rep. 123. Peter Mitchell, for defendant, appellant.

Peter B. Olney (John Vincent, assistant), for the people respondent.

MILLER, J.-The prisoner, in conjunction with her husband and one Woodbury, was indicted for the crime of forgery in the third degree, and, being separately tried, was convicted of the offense. The evidence showed that all of the defendants combined and co-operated in the commission of the crime. At the close of the testimony counsel for the defendant requested the court to advise the jury to acquit the defendant on the ground that she was the wife of the co-defendant Edward C. Ryland and was under the coercion of her husband at the time when the offense was committed; that all that was done by her, viz: the delivery of the check to her husband and subsequently receiving a part of the proceeds of the forgery, was done in her husband's presence, and the presumption of law is that she acted under his control and direction. This was refused, and an exception was taken by the defendant's counsel to the decision of the court. The rule undoubtedly is that whatever of a criminal nature, the wife does in the presence of the husband, is presumed to be compelled by him. 1 Bish. Crim. Law, 7th ed. 359. But this presumption is prima facie and not conclusive, and if it appears that she was not urged or drawn to the offense by him but was an inciter of it she is liable as well as he. Seiler v. People, 77 N. Y. 413; Goldstein v. People, 82 N. Y. 233.

There was no direct proof upon the trial that the defendant acted under the coercion of her husband in committing the offense; on the contrary the proof tended to show that she acted on her own responsibility and voluntarily incited and

aided in the consummation of the crime. There is evidence showing that she first suggested to her husband and the accomplice the idea of obtaining the check; that she went out with her husband, and returned after an absence of four hours with a check for six dollars, which she had procured, and delivered the same to her husband and that the erasure on the check was made in her presence. This check was obtained upon representations by her that she wished to purchase the same because the post office was closed and she could not obtain an order there, and that she desired to send it that evening to her sister or mother in Philadelphia. This representation was utterly false, as the proof showed that the check was intended and used for another and a different purpose, and there is testimony tending to show she delivered it to her husband for the purpose of being altered. He was not present when she procured the check and it was proved that she subsequently received a considerable portion of the avails thereof as her share for her participation in the crime. There is no direct evidence that she acted under the influence of her husband or that he directly or otherwise compelled her to engage in the transaction. As the case stands it is not a legitimate inference that the husband directed her action and that she was coerced by him. The most that can be claimed, giving a construction to the evidence most favorable to the defendant, is that it was a question of fact for the jury. No requests were made to charge the jury in regard to it and the presumption is that it was fairly submitted to their consideration. We think there was no error committed in refusing the request considered.

There is no ground for the contention that the defendant merely delivered a valid check to her husband and thereby committed no unlawful act, as it was established beyond controversy that she was a particeps criminis at the outset as well as in the final consummation of the crime. If the delivery of the check was an innocent act no reason exists why she should have received a large portion of the avails realized from it after it had been altered. They did not belong to her and she could only have received them as one of the instigators of the crime.

The position taken, that the defendant is not accountable for any act done by her husband in her presence and especially