#### PEOPLE ex rel. BIDWELL v. PITTS, Sheriff.

(Supreme Court, Appellate Division, Third Department.

January 19, 1906.)

Criminal Law—Judgment—Certificate of Conviction—Sufficiency.

A certificate of conviction which states that defendant was convicted of petit larceny sufficiently designates the crime within Code Or. Proc. § 721 declaring that a certificate of conviction shall “briefly designate the offense,” though it does not state the time when, place where, and person from whom the larceny was committed, the words “petit larceny” being the name of the offense defined by Pen. Code, § 532.

Appeal from Special Term, Albany County.

Proceedings by the people, on the relation of George Bidwell, for a writ of habeas corpus, against Sebastian W. Pitts, as sheriff of Albany county. From an order discharging relator from imprisonment, defendant appeals.

Reversed.

*510• Argued before PARKER, P. J., and SMITH, CHESTER, KELLOGG, and COCHRANE, JJ.

George Addington, Dist. Atty. (Robert H. McCormic, Asst. Dist. Atty., of counsel), for appellant.

William E. Woolard, for respondent.

JOHN M. KELLOGG, J.

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” was a sufficient compliance with that requirement, as it named the offense used by the Penal Code. Matter of Bartholomew, 106 App. Div. 371, 94 N. Y. Supp. 512. 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 designate the offense” is inserted the words “petit larceny,” 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 section 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. Hagen, 170 N. Y. 46, 49, 62 N. E. 1086. 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 according to its statutory definition was sufficient. People v. Johnson, 110 N. Y. 134,17 N. E. 684.” People ex rel. Allen v. Hagen, 170 N. Y. 50, 62 N. E. 1087. In People ex rel. Sullivan v. Sloan, 39 App. Div. 265, 56 N. Y. Supp. 930, 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 concur.