#### The People of the State of New York ex rel. Julius Goldstein, alias Jacob Davis, alias David Harris, Appellant, *v.*James M. Clancy, Warden of the State Prison, Ossining, N. Y., Respondent.

Second Department,

July 31, 1914.

Crime — indictment for second offense — reversal of conviction on first offense during trial — jurisdiction to try defendant for first offense upon indictment charging second offense —■ question cannot be raised in proceeding for habeas corpus — appeal.

Where pending the trial of an indictment charging the defendant with grand larceny in the second degree as a second offense, a judgment of conviction on the first offense was reversed, and the defendant’s attorney duly objected to trial on the indictment for a first offense, but did n'ot object to a previous statement made by the district attorney as to the *615defendant being a second offender, the question as to whether the court was without jurisdiction to try the defendant for the first offense upon an indictment charging a second offense cannot be raised in a proceeding for a writ of habeas corpus.

The court had jurisdiction of the indictment, and if sufficient was not proven to sustain it the remedy is by appeal.

Appeal by the relator, Julius Goldstein, from an order of the County Court of the county of Westchester, entered in the office of the clerk of said county on the 4th day of February, 1914.

*K. Henry Rosenberg,*for the appellant.

*George Z. Medalie [Charles S. Whitman, District Attorney,*with him on the brief], for the respondent.

Thomas, J.:

The relator appeals from an order dismissing a writ of habeas corpus. He was imprisoned upon a judgment of conviction, entered in the Court of General Sessions of the Peace of the county of Hew York. The indictment charged grand larceny in the second degree as a second offense, but thereafter, and pending trial, the judgment of conviction on the first offense was reversed. After the jury was selected but before it was sworn, the district attorney discovered the reversal of the earlier conviction and stated that he would abandon the charge of second offense, and try the defendant as for a first offense, and asked the defendant’s counsel whether he had any objection to the statement already made to the jury that the defendant was a second offender. Although defendant’s attorney duly objected to trial on the indictment for a first offense, I do not gather that he objected to the statement made to the jury. So the mere question, aside from the propriety of the writ, is whether the court was without jurisdiction to try the defendant for a first offense upon an indictment charging a second offense.

I think that the question cannot be raised by the present proceeding. The court had jurisdiction of the indictment before it, and if sufficient was not proven to sustain it, the review is by appeal. Assume that nothing had been said by the district attorney of his ability to prove the first offense, and no proof of the first offense had' been made, and the jury *616had found the defendant guilty of the first offense, the remedy would he by appeal from the judgment. It does not change the situation that the district attorney stated that he could not make the proof and the jury found the same verdict. The jury found the defendant guilty of an offense charged, and if it could not legally do that without finding the first offense, the court was not thereby ousted of jurisdiction, but pronounced judgment upon an insufficient finding by reason of insufficient evidence. But the judgment stands until reversed, and habeas corpus does not lie. (Code Civ. Proc. § 2032.)

The appellant urges that the court was not a competent tribunal. It was competent to entertain jurisdiction, to find and to decide — even if it decided erroneously. That does not warrant the writ of habeas corpus. But I think that the trial on the indictment was proper. The statute provides for punishment upon conviction of a second offense. (Penal Law, § 1941.) It does not create a new offense, but augments the punishment of the second offender. There is not a combination of the two offenses nor is the first offense in any sense retried, or further punishment therefor imposed. The defendant is tried to discover whether he has committed another crime, and for the purpose of sentence the question whether he has been earlier convicted is ascertained. If the jury does not find that he has been theretofore convicted, he may be found guilty of the offense for which he is tried, and punished accordingly. As he is tried for the last offense and for that alone, the verdict may relate to that alone, and in any case may involve the earlier offense for the purpose only of informing the court of the punishment, or the minimum punishment, demanded by the statute. The relator’s contention would require acquittal if the first offense were not found — a misconception, I think, of the purpose of the statute.

The order of the County Court of Westchester county should be affirmed, and the writ dismissed.

Righ, J., concurred; Burr, Care and Stapleton, JJ., concurred upon the first ground stated in the opinion.

Order of the County Court of Westchester county affirmed and writ dismissed.