#### PEOPLE ex rel. FORBES v. MARKELL, Penitentiary Superintendent.

(Supreme -Court, General Term, Fourth Department.

December 26, 1895.)

Criminal Law—Commitment by Police Justice—Clerical Errors.

A commitment issued by a police justice is not void merely because, through a clerical error, it was dated 1885, instead of 1895.

Appeal from order of Onondaga county judge.

Bert Forbes was convicted on a charge of resisting a police officer while in the discharge of his duty, and applies for a writ of habeas corpus, directed to John 8. Markell, superintendent of the Onondaga county penitentiary, to procure his discharge from imprisonment. From an order dismissing the writ and remanding relator, he appeals.

Affirmed.

Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.

Hopkins & Bondy, for appellant.

George W. Standen, for respondent.

MERWIN, J.

In the petition of the relator for a writ of habeas corpus, it is alleged that he is held on a commitment issued by the police justice of the city of Syracuse, and that such commitment is illegal and void. There is no specification of any defect, except that it is dated March 15, 1885. A copy of the commitment is attached to the petition, and, on its face, it is quite apparent that the year of the date should be 1895, and that the defect was only .clerical. No point is made as to this on this appeal, or that there is any other defect upon the face of the paper. Nor is it claimed that the police court did not have jurisdiction to try the -relator and issue the commitment, or that the commitment is insufficient. The main point seems to be that there was no proper judgment in the police court. By section 721, Code Cr. Proc., which relates to proceedings in *724courts of special sessions and police courts, it is provided that when a conviction is had upon a plea of guilty, or upon a trial, the court must make and sign a certificate in substantially the form as there given. By section 725 it is provided that the judgment must be executed by the sheriff or other proper officer upon receiving a copy of such certificate, certified by the court or the, county clerk. The-commitment in the present case was a copy, certified as required by section 725, of a certificate substantially in the form as provided by section 721. Upon its face it was a judgment. By section 723 it is provided that within 20 days after the conviction the court must cause the certificate provided by section 721 to be filed in the office-of the clerk of the county, and by section 724 it is provided that the-certificate so made and filed, or a certified copy thereof, is conclusive evidence of the facts stated therein. It is not claimed that this certificate was not properly filed. The presumption is that the court,, in that regard, did its duty. The burden of proof is on the relator. Ex parte Heyward, 1 Sandf. 703; People v. Cavanagh, 2 Park. Cr. R. 650, 658. In People v. Baker (Super. Buff.) 3 N. Y. Supp. 536, the certificate was held to be effectual, though not filed. In People v. Neilson, 16 Hun, 214, it was held that where a return to a writ of habeas corpus show's that the relator is held under a commitment issued by a court of special sessions, after a trial and conviction by it, the only question presented is whether or not such court had jurisdiction to try the relator and issue the commitment. “Where the-imprisonment is under actual process, valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burthen of impeaching its validity by showing a want of jurisdiction in the magistrate or court whence it emanated. If he fail in thus impeaching it, his body is to be remanded to custody. Error, irregularity, or want of form is no objection; nor is any defect which may be amended or remedied by a further entry on motion.” 3 Hill, 661, note 31, and cases cited. In People v. Smith (Sup.) 9 N. Y. Supp, 181, the court, in speaking of the certificate under section 721, say:

> “The statute does not require that any judgment should be entered In the-minutes of the court. In short, there is but one mode of rendering judgment, and that is by pronouncing sentence. And there is but one record of the judgment, and that is the certificate of the sentence pronounced.”

The police court was not a court of record, and the provisions of section 721 et seq. were evidently intended to provide for the form and preservation of its judgments. It is reasonable to presume that the certificate set out in section 721 was designed to be the record, of the conviction. If so, as the police justice had, concededly, jurisdiction of the person and subject-matter, the relator had no basis for relief on a writ of habeas corpus. The evidence, therefore, as tow'hether the record kept by the clerk of the police justice was insufficient or incomplete, was not important. Nor is it material to inquire whether the police justice had a right, after the present proceedings were'commenced,-to correct the minutes of his clerk, and make them conform to his own. If the county judge erred in his rulings in regard to evidence on these subjects (1 Crary, Prac. [3d Ed.]' 387; Hurd, Hab. Corp. [2d Ed.] 304), the relator was not prejudiced. *725We find no good reason for disturbing the order appealed from, and it should therefore be affirmed.

Order affirmed. AH concur.