The People agt. Harrington.

COURT OF SESSIONS.

THE PEOPLE agt. JOHN HARRINGTON and GEORGE MESSER.

Power of court to suspend sentence after conviction · When court cannot afterwards sentence upon such conviction - Code of Civil Procedure, section 832-Penal Code, sections 507, 711.

The court of sessions has the power to suspend sentence after conviction and may at any time afterwards pronounce sentence upon same conviction.

But if the rights or status of the prisoner change, as where when he is convicted he is under sixteen years of age and may be sentenced to the House of Refuge, which would not disfranchise him, after he passes that age he cannot be sentenced upon such conviction.

Albany, November Term, 1884.

JOHN C. NOTT, County Judge, and ALBERT E. HINMAN and PETER WALKER, Associates.

THE facts are sufficiently stated in the opinion.

D. Cady Herrick, district attorney, for the people.

Galen R. Hitt, for prisoners.

NOTT, County Judge. At the June term of the court in 1883, the defendants Harrington and Messer were indicted for the crime of burglary in the second degree, and upon their arraignment each entered a plea of guilty. After their pleas this court, county judge VAN ALSTYNE presiding, suspended sentence, and each was discharged from custody. In November, 1884, the defendants were committed to jail by one of the police justices of this city, charged with another crime. The district attorney on December 5, 1884, caused the defendants to be brought into this court, and moved that each be sentenced under his plea of guilty entered at the June, 1883, term of this court.

The defendants through their counsel, G. R. Hitt, object

The People agt. Harrington.

thereto, urging various grounds. At the time the plea was entered both defendants were under sixteen years of age. Harrington is still under sixteen, but Messer is now over that age.

66

In the case of the People agt. Morrisette (20 How. Pr., 118) the court of oyer and terminer refused to suspend sentence, holding that no suspension of sentence or stay is authorized except upon a certiorari or writ of error, on application in arrest of judgment, or for a new trial, but this ruling is contrary to the current of cases in this country, and the precise point has been recently determined in the fourth department of the supreme court. In the People agt. Graves, says HARDIN, J., we regard the essential question in this case so firmly resolved against the appellant by the authorities that we do not deem it useful to open the question for fresh investigation and adjudication" (2 N. Y. Crim. R., 227). It is just and proper that the power to suspend sentence should exist in the superior criminal courts. Great harm might otherwise flow to society in the destruction of the means of those charged with the administration of criminal justice to expose through this aid dangerous conspiracies against person and property. "It would seem," says DIXON, J., "that it is stating the matter too broadly to assert that it is always the imperative duty of a court to render judgment on a conviction of crime, unless some legal proceedings for review be interposed, considerations of public policy may induce the court to stay its hand" (State agt. Addy, 14 Vroom, 113; 39 Am. R., 546). In the case of Harrington the clemency of this court seems to have had no salutary effect upon him. We find him again in the custody of the law charged with crime, and our duty is to impose. sentence on him, which is that he be confined in the House of Refuge during the pleasure of the managers (Park agt. People, 1 Lans., 263). In Messer's case a different question is presented. In his case at the time of his plea of guilty, he was one of that class of criminals recognized as juvenile delinquents, and the sentence of the court might and probably

The People agt. Harrington.

would have been to the House of Refuge, where his mind would have been properly trained and means taken to reform and educate him, and although but for the provisions of the Code of Civil Procedure (sec. 832) he would be disqualified as a witness (People agt. Park, 41 N. Y., 21), yet his right to vote at any election, when arriving of age, would not be taken away (Penal Code, sec. 711). He is now over the age of sixteen years, and if sentenced he must be imprisoned "in a state prison for not more than ten years, nor less than five years" (Penal Code, sec. 507), or to the Elmira Reformatory, wherefrom he may be transferred to a state prison.

A sentence now under the plea of guilty would be adding an additional penalty to that which might and probably would have been suffered if sentenced at the time he entered his plea, that of disfranchisement. It is an elementary rule that any law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed is void (Calder agt. Bull, 3 Dall., 386–390), and the rule is the same when the law is changed after convictions. (Hartung agt. People, 22 N. Y., 95). The humanity of our law, and the genius of our constitution requires that no severer penalty should be imposed on a criminal than that which existed when the offense was committed or a conviction had. In State agt. Addy (43 N. J. L. R., 113), it was held on a conviction of maintaining a nuisance, the court having suspended sentence on payment of costs, so long as the defendant should abate the nuisance, that a sentence of imprisonment at a subsequent time was void.

The charity of a court should not be allowed to work an injustice to a defendant. Independent of the question of disfranchisement, there is such a marked difference between the methods and prison discipline of the House of Refuge and a state prison, that it is apparent a sentence now of Messer to a state prison would be harder and more severe than if sentenced over a year ago when the plea was entered! Entertaining these views the court declines to sentence Messer

Krom agt. Kursheedt.

on his plea of guilty, and remands him into the custody of the sheriff under the later criminal charge, upon which he was committed to jail to be proceeded against as the law directs.

N. Y. SUPERIOR COURT.

STEPHEN R. KROM, plaintiff, agt. ASHER KURSHEEDT, defendant and respondent.

Non-resident clients - When defendant may require security for costs—When attorney liable for such costs — Residence-What constitutes Code of Civil Procedure, sections 3268-3278.

Mere presence in the state during business hours does not constitute residence, so as to relieve an attorney from his liability for costs, under section 3278 of the Code of Civil Procedure.

It is no answer under this section that the attorney commenced the action in good faith and in the belief that the plaintiff and his family were domiciled in New York.

Nor does the omission of the defendant to demand security for costs during the pendency of the action affect the attorney's liability.

General Term, December, 1884.

Before SEDGWICK, C. J., VAN VORST and FREEDMAN, JJ. A. B. Moore, for appellant.

M. A. Kursheedt, for respondent.

FREEDMAN, J.-This is an appeal by George F. Wellman, the attorney for the plaintiff, from an order requiring him as such attorney to pay to the defendant the sum of $100 on account of the costs awarded to the defendant in the action. At the time of the commencement of the action the plaintiff resided with his family at Plainfield, New Jersey, and he still continues to reside there.

Krom agt. Kursheedt.

By section 3268 of the Code of Civil Procedure, the defendant may require security for costs to be given where the plaintiff was when the action was commenced, a person residing without the state; and by section 3278 the plaintiff's attorney in such a case is made liable for the defendant's costs to an amount not exceeding $100, until security is given as prescribed, although the defendant has not required such security to be given.

It is claimed, however, by the appellant that because it was made to appear by affidavit that at the time of the commencement of the action, the plaintiff had been engaged in business in the city of New York for about sixteen years, he was not a non-resident within the meaning of section 3628, though he and his family were domiciled in another state.

After a careful examination of the cases cited to illustrate the distinction between residence and domicile, and conceding that a person can have a residence in one state and his domicile in another, I fail to see how the appellant can be relieved. Mere presence in the state during business hours has never yet been held to constitute residence. On the contrary, in the enforcement of our attachment laws against non-residents, it has repeatedly been held that presence during business hours in this state does not amount to residence (Wallace & Sons agt. Castle, 68 N. Y., 370; Chaine agt. Wilson, 1 Bosw., 673; Barry agt. Bookover, 6 Abb., 374).

In the absence, therefore, of a statutory provision making presence during business hours in this state equivalent to residence, in the construction of section 3278, the order appealed from was fully warranted by the facts shown to the court below.

It is no answer, under section 3278, that the appellant commenced the action in good faith and in the belief that the plaintiff and his family were domiciled in New York. Nor does the omission of the defendant to demand security for costs during the pendency of the action affect the attorney's liability (In the matter of David Levy, 10 Daly, 391).