(78 Hun, 586.)

#### PEOPLE ex rel. O’BRIEN v. WOODWORTH, Sheriff.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Habeas Corpus—Imprisonment under Sentence Valid in Part.

A person under sentence of fine and imprisonment, imposed by a court of sessions, cannot be discharged on habeas corpus, on the ground that the court of sessions exceeded its powers in imposing the fine, where the court had power to imprison, but the term of imprisonment had not expired.

Appeal from special term, Wyoming county.

Application by John O’Brien for writ of habeas corpus to Melvin J. Woodworth, sheriff of the county of Wyoming. From an order refusing to discharge petitioner from imprisonment, and remanding him to the custody of the sheriff, petitioner appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Charles D. Newton, for appellant.

George W. Botsford, for respondent.

LEWIS, J.

The relator was indicted at the court of oyer and terminer of Wyoming county on the 8th day of December, 1893, for violation of the excise law. By an order duly made, the case was sent to the Wyoming court of sessions. On the 8th day of January, 1894, the relator pleaded guilty to the indictment; and on the 15th of the same month he was sentenced by said court to be imprisoned in the county jail for a period of 60 days, and pay a fine of $100, and stand committed to the Wyoming county jail until said fine was paid, not exceeding 100 days. On the 26th of February, 1894, the relator procured a writ of habeas corpus returnable before one of the justices of the supreme court on the 5th day of March, 1894. After hearing the parties, the application to *212discharge the relator was denied, and he-was remanded to the eus-' tody of the sheriff of the county of Wyoming, and from that order the relator appeals to this court.

It is the contention of the relator that, in sentencing him, the court of general sessions exceeded its jurisdiction in so far as it imposed the money penalty, and that the judgment was therefore erroneous and void. Our attention is called to section 56 of the Code of Criminal Procedure, which provides that:

> “Subject to- the power of removal provided for in this chapter, courts of special sessions * * ® have in the first instance exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties as follows: * * * (32) When a complaint is made to or warrant is issued by a committing magistrate for a violation of the laws relating to excise and the regulation of taverns, inns and hotels, or for unlawfully selling or giving away to any Indian, spirituous liquors or intoxicating drinks.”

Section 717 of the same Code provides:

> “Judgment on Conviction. When the defendant pleads guilty or is convicted either by the court or by a jury, the court must render judgment thereon of fine or imprisonment or both as the case may require, but the fine cannot exceed $50 nor the imprisonment six months.”

The latter section is included in the title relating to proceedings in courts of special sessions. Had the defendant been tried in a court of special sessions, concededly that court would not have had jurisdiction to impose a money penalty exceeding $50; but whether section 717 has any application to a case tried in a court of general sessions may well be doubted. It does not necessarily follow, we think, because the jurisdiction of a court of special sessions is limited to the punishment mentioned, that the court of general sessions had not jurisdiction to impose the penalty for misdemeanors provided by section 15 of the Penal Code, to wit, 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. The defendant pleaded guilty of a misdemeanor; but, from the view we have taken of this appeal, it is not necessary that we should decide the question.

At the time the relator applied "for the writ, he was in the custody of the sheriff, by virtue of a final judgment of a competent court, which, concededly, had the power to impose a sentence of imprisonment for a misdemeanor for the term of six months. The relator was sentenced to imprisonment for 60 days, and to pay a fine of $100. He had not at the time he applied for the writ, nor on the return day thereof, served the 60-days sentence. The sentence in that regard was lawful, and, until he had paid that part of the sentence, he was not in a position to raise the question as to the legality of -the $100 penalty. Had his application been made after the expiration of the 60 days, he would then have been in a situation to raise the question as to the legality of the balance of the sentence; and, if it had been held that the court exceeded its authority in including in the sentence the fine of $100, he would have been entitled to his liberty, for to hold otherwise would de*213prive him of the option of paying the $50, had that been the money penalty, and thereby escaping further imprisonment; but that rule has no application to the 60-days part of the sentence, for, that being within the power of the court to impose, he was, in any event, obliged to serve that much of the sentence. The order appealed from should be affirmed. All concur.