New-York tribune., 1912-02-22
BRANDT REMANDED FOR TRIAL
Judge Rosasky Severely Criticised for First Degree Burg
lary Sentence.
lary Sentence.

his time TO appeal has expired. Must hs
then appeal for mercy TO the Executive
when he is entitled TO justice from the
courts?
In support Of this part OF the opinion
the entire proceedings before Judge Rosal-
sky are quoted and particular stress is laid
on the form of the pleadings. OF which
Justice Gerard says:
The facts occurring prior TO the imposi-
tion Of this sentence, SO far as disclosed
by the record before me. are as follows:
ON March %. 1907, Brandt was indicted.
charged with burglary in the first degree.
grand larceny In the first degree and re-
ceiving. The Endorsement on the indct
rent shows that on March q. 1907, he
pleaded Not guilty, And there is oppo-
&c. A. Baylis. s4S Broadway." There is
a further entry on the back OF the indct-
ment as follows: March IS. ~. pleads
burglary first degree" The clerk S minutes
contain the following entry:
Thursday morning, March 2. 1861.
Court meets pursuant to adjournment,
present Hon. Otto a. Rosalsky.
Judge Of the Court of General Ses-
sious.
ON indictment for
burglary in the first
degree.
Filled March %. 1901
March s. 1907. feloni-
ously did break into
and enter the dwell
ing house of ono
The People Mortimer T.. Schiff,
in the night time,
vs.. there being then and
there n human being,
Foulke Engle Brandt and then and there
arming himself with
Indicted as a certain knife and
n certain club. and
Laurence De Foulkc. stealing therein two
pins and a shoe horn
Tho defendant by
leave. etc. withdraws
his plea of not guilty
and now pleads guilty
70 burglary In the
first degree"
On April g. 1907. the prisoner was again
arraigned and received a sentence of thirty
years for the crime of burglary I'm the first
degree.
Plea Of Guilty Discussed.
The statute provides that the plea OF
defendant pleads that he is guilty (Code
OF Criminal Procedure. Section 1855. and
this plea can only be put In by the de
OF the Code OF Criminal Procedure), and
the judge must inform him of his right
to have counsel (Section 3OS).
On March y. 1907. what occurred was as
follows. as is shown by the record and the
stenographers minutes.
Brandt appeared I'm court without counsel
and entered lorna formal plea OF guilty guilt -rae 10 the
whereupon he was swsrn and was ques-
TONED by the court The record shows that
he was not asked whether or not he de-
sired 10 be represented by counsel or have
counsel assigned TO him by the court.
on the question Of whether the examina-
tion by Judge Rosalsky showed that burg
larry in the first degree had been committed
he says:
The crime of burglary in the first degree
is defined by Section 4l2 Of the penal law
as follows: "a person. who, with intent to
commit some crime therein breaks and en-
ters. in the night time, the dwelling house
OF another. In which there is at the time
a human being:
1. Being armed with dangerous weapon; !;
2 Aiming himself therein with such a
weapon; or,
g. Being assisted by confederate actu.
ally present; or,
l. Who. while engaged in the night time
In erecting an entrance, or committing
such crime in such building or In es-
Gaping thercfrom. assaults any person, is
guilty of burglary In the first degree"
The question and answers above set forth
show that Brandt. whatever other crime he
committed. did not break 10 enter within
the meaning or the law and show that the
crime Of burglary IN the first degree, or
In amy degree, was not. in fact, committed.
lie continues:
Ills answers, however, given on oath 10
the questioning above, disclosed that. al
though he Intended 10 plead guilty 10
something, whatever he pleaded guilty 70
did not amount TO burglary in the first
degree
Judge Without Jurisdiction.
! hold that when defendant puts In a
formal plea Of guilty. that then, II the
Judge proceeds TO swear the defendant and
learns from him that the acts which he
admits doing did not Ia fact constitute the
crime 10 which he pleads guilty, and that
the defendant did not in reality intend 10
plead guilty TO that crime, then the judge.
who sits 10 protect the interests Of the