#### The People ex rel. Roy Stumpf, Relator, *v.*William H. Craig, Superintendent, Defendant.

(Supreme Court, Monroe Special Term,

January, 1913.)

Courts of Special Sessions — functus officio on pronouncing judgment. Habeas corpus — arrest of relator for alleged violation of parole.

A Court of Special Sessions, in the absence of statutory provisions, is *functus officio*after trial and the pronouncement of judgment.

Where in a police court relator, on his plea of guilty, was convicted of petit larceny and paroled to the probation officer for six months on a suspended sentence, his arrest, before the expiration of a six-months’ extension of such parole on a warrant issued by the court in which he was convicted and upon an information by the probation officer that relator had violated his parole by neglecting to comply with the terms thereof, is illegal and relator is entitled to be discharged from custody on habeas corpus.

Habeas coepus to defendant sued out by the relator.

George D. Forsyth, for relator.

John W. Barrett, District Attorney, for defendant.

Benton, J.

On the 8th of August, 1911, a warrant was issued out by the Police Court of the city of Rochester, FT. Y., upon information substantially charging Roy Stumpf with petit larceny in appropriating to his own use three dol*99Lars and fifty-five cents, the property of John Empke. At that time the said Eoy Stumpf was convicted upon his plea of guilty, and it was adjudged that sentence be suspended on said Stumpf and he was paroled to Mr. Masters, parole officer, for six months.

On or about June 3, 1912, the said Stumpf in company with Mr. Masters appeared in Police Court and Mr. Masters asked that the parole be extended three months. The court said: “You want it extended?” The parole agent said: “ Yes, three months.” The court responded: “ The parole extended six months.”

On or about November 6, 1912, the said parole officer presented a written paper to the police justice of the city of Eochester, reciting the conviction of Stumpf, the parole, the extension of the parole and further stating that said Eoy Stumpf “has violated his parole by neglecting to comply with the terms of his parole, and I, therefore, ask that a warrant. be issued and he be arrested for such violation.” Whereupon, a warrant was issued dated November 12, 1912, stating that,

> “ Information upon oath having this day been laid before me by Parole Officer Masters that Eoy Stumpf has violated his parole, having been convicted and paroled in Police Court for Petit Larceny, on June 3, 1912, has been committed, and accusing Eoy Stumpf thereof, you are therefore commanded forthwith to arrest the above named Stumpf and bring him before me at my office in the City of Eochester. *,*

> “(Signed) John H. Chadsey,

> *“Police Justice.”*

Said Stumpf was arrested under said warrant and brought before the police magistrate on December 13, 1912, and without any specification as to how, when or where he had violated his parole, and without an opportunity to be heard being granted him, he was summarily sentenced to imprisonment in the Monroe County Penitentiary for fifteen days, *100and a certificate of conviction issued to the effect that *“*Stnmpf having been brought before Judge Chadsey charged with Petit Larceny on July 11, 1911, by taking from the possession of John Empke, $3.55, with the intent to deprive and defraud, etc., and that Stumpf having thereupon pleaded guilty, it is adjudged that he be imprisoned in the Monroe County Penitentiary for fifteen days. Dated, December 13. 3912.”

If the court had jurisdiction this is the final process, and can not now be questioned by habeas corpus. If the court was without jurisdiction and the proceeding is *comm judice,*the relator is entitled to his discharge.

“ When a prisoner is held under a judgment of a court made without authority of law,- the proper tribunal will, upon *habeas*corpus, look into the record so far as to ascertain this fact; and if it be found to be so, will discharge the prisoner. It is no answer to say the court had jurisdiction of the person of the prisoner, and of the offense, under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in such a case.” People, ex rel. Tweed, v. Liscomb, 60 N. Y. 559, 572.

The police magistrate had original jurisdiction of the prisoner and of the offense. Upon his plea of guilty, the court could suspend sentence and place upon probation. Section 11a, subdivision 4, of the Code of Criminal Procedure, makes it the duty of the court when it does so, to determine the conditions and period of probation. It did determine the period, but no conditions whatever, and the court is further authorized by the same statute to “ modify the conditions and the period of probation; may in case of violation of the probationary conditions, * * * impose any penalties which it might have imposed before placing the defendant on probation.” Attention is drawn to section 23.88 of the Penal Law under which the magistrate, upon conviction, is given' authority to suspend sentence and place the offender under probation, and at any time thereafter, during the longest period for which he could have been committed *101in the first instance, such magistrate or his successor, if his term has expired, may pronounce any sentence or judgment, or impose any fine or other penalty, or make any commitment which might have been pronounced, imposed, or made at the time the conviction was had.

Ostensibly, the police magistrate was acting under section 11a of the Code of Criminal Procedure, authorizing the appointment of probation officers by courts and magistrates and Mr. Masters was such probation officer so appointed. Subdivision 4 of this section provides the method of procedure, as follows: “ When any court suspends sentence and places a defendant on probation it shall determine the condition and period of probation, which period of probation shall not exceed * * * in the case of an offense less than a felony, two years. The conditions of probation shall be such as the court in its discretion prescribes, etc. * * * The court or a magistrate thereof may modify the conditions and the period of probation; may, in case of violation of the probationary conditions, issue a warrant for the arrest of the probationer; and may at any time discharge the probationer; and in case of violation of the probationary conditions, the court may impose any penalties which it might have imposed before placing the defendant on probation.”

Mo conditions were specified in the judgment and the period of probation was extended beyond its first prescribed time. .A Court of Special Sessions in the absence of statutory provision is *fundus officio*upon the trial and the pronouncement of judgment.

It is questionable whether it has authority, in any event, after fixing the period of probation to extend it. The provision that it may modify the conditions and period is not sufficient to warrant it to extend it, but even if that be waived, and assuming that the court sanctioned such conditions as the parole officer imposed, and did have authority to extend, and therefore, might issue its warrant in case of the violation of the probationary conditions, and, thereafter, imposed such penalty as it might have imposed upon the original trial, there is no power vested in it to do this arbitrarily, *102and without knowledge and proof that such parole had been violated. The statement of the parole officer does not specify what the conditions were or in what its violation consisted. Presumptively, the police magistrate had no knowledge or information of it save as contained in the information filed by the parole officer, and none appears in the record.

The defendant was there protesting his innocence and demanding his right to be heard. Ho hearing was accorded him and he was summarily convicted of a violation of his parole without information as to when, where, or how it has been violated; nor does it appear that the police magistrate had knowledge of it.

To send a person to prison because he has violated some condition which he insists he has not, and without specifying what it is and without giving him an opportunity to he apprised of the condition and its violation which is claimed to have occurred and to be heard in his own behalf, violates elementary principles of criminal jurisprudence, and makes the statutory provision designed to be humane and reformatory authority for arbitrary imprisonment unknown to our laws, and can only leave a sense of rankling injustice in the mind of the defendant. Ho court may arbitrarily and without reason imprison under either section. The utmost that could be claimed for section 2188 of the Penal Law would be that it conferred judicial discretion to sentence. “ While judicial discretion is a phrase of great latitude, it never means the arbitrary will of the judge.* * * It is a legal discretion founded upon conditions which call for judicial action as distinguished from mere individual or personal view or desire.” Matter of Superintendent of Bank, 207 N. Y. 11, 15.

I hold the detention of the defendant in this case to be illegal and the information, warrant and commitment under which he is held void. The relator is discharged.

Relator discharged.