The relator was indicted in January, 1941, by the Grand Jury of Erie County. In the first count of the indictment he was charged with "Burglary in the Third Degree, contrary to the Penal Law, Sections 400, 404", committed by feloniously breaking into and entering a dwelling house with intent to commit a crime therein. In the second count he was charged with "Buying, Receiving, Concealing or Withholding Stolen or Wrongfully Acquired Property, contrary to the Penal Law, Section 1308, in that he * * * knowing the same to have been stolen and appropriated wrongfully in such manner as to constitute larceny, feloniously bought, received, concealed and withheld property stolen from Edna Mueckl." Upon arraignment the relator pleaded not guilty but three months thereafter he withdrew his plea of not guilty and, in the presence if his counsel, pleaded guilty to "Attempted Grand Larceny 2nd degree on 2nd count of the indictment." Upon that plea he was convicted of attempted grand larceny second degree and on May 2, 1941, he was sentenced as a third offender to imprisonment for the term of not less than two years and six months nor more than five years. *Page 364
A defendant "may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment." (Code Crim. Pro., § 445.) The crime of "Attempted Grand Larceny 2nd degree" of which the relator has been adjudged guilty upon his plea of guilty is not "necessarily included in that with which he is charged in the indictment", nor would the court have power to amend the indictment, even with the relator's consent, to include the crime of grand larceny. (People v. Miles, 289 N.Y. 360.)
"No person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury." (N Y Const., art. I, § 6.) Until the Grand Jury has found an indictment accusing a person of an infamous crime, no court has jurisdiction to try a charge otherwise made or to accept a plea of guilty. The Legislature cannot confer upon the courts jurisdiction which the Constitution commands shall not be exercised by the courts. Since the Constitution commands that no person may be held to answer for a felony "unless on indictment of a grand jury", the Legislature cannot authorize a court to pronounce judgment convicting a person of an infamous crime upon the plea of guilty where no accusation has been made by a Grand Jury (People ex rel. Battista v. Christian, 249 N.Y. 314), nor may it authorize a court to amend an indictment to include an accusation of criminal acts independent of any accusations presented by the Grand Jury in the indictment. We need not now decide whether, by section 295 of the Code of Criminal Procedure, the Legislature intended to confer a power of amendment so broad. It could not do so. (People v. Miles, supra.) We are agreed that the trial court erred when it pronounced judgment upon the relator's plea of guilty of a crime not "necessarily included in that with which he is charged in the indictment."
The relator has challenged by writ of habeas corpus the lawfulness of his detention under the sentence imposed upon him. The court at Special Term sustained the challenge, holding that the sentence was a nullity, and remanding the relator to the custody of the Sheriff, to be held under the indictment for burglary in the third degree and for criminally receiving stolen goods. *Page 365 Two previous writs obtained by the relator for the same purpose and on the same ground had been dismissed, the court holding that the judgment is valid. The People of the State appealed from the order of Special Term in the third habeas corpus proceeding, holding the judgment invalid. The Appellate Division affirmed the order, two justices dissenting.
Though the judgment of conviction of the charge of attempted grand larceny is erroneous, the question remains whether it is a nullity and whether a person held thereunder may challenge the lawfulness of his detention by writ of habeas corpus. That question was not presented in People v. Miles (supra) for there the judgment finding the defendant guilty was challenged and was reversed on appeal from the judgment. In People ex rel.Battista v. Christian (supra), no criminal prosecution had been commenced by presentment or indictment of the Grand Jury and the court for that reason was forbidden by the Constitution to hold the relator to answer for any infamous crime and had no jurisdiction to pronounce judgment finding the relator guilty of any such crime. The judgment in that case was not based upon an erroneous judicial ruling in a pending judicial proceeding. It was based upon a ruling of a judge before whom no judicial proceeding was pending. Such a judgment is, of course, a nullity, and a person restrained thereunder is entitled to discharge upon the hearing of a writ of habeas corpus. Here the judgment is based upon a ruling by the court in a judicial proceeding which had been commenced by an indictment of the Grand Jury and which was pending in the County Court of Erie County when judgment was entered. The County Court of Erie County which pronounced sentence has general jurisdiction both of the crime charged in the indictment and of the crime of which the relator has been found guilty, and had jurisdiction of the person of the relator when he was arraigned upon that indictment and pleaded not guilty to the indictment, and when the relator withdrew that plea and offered to plead guilty to attempted grand larceny second degree under the second count of the indictment. In the judicial proceeding then pending the court was called upon to decide the question of law whether the commission of the crime of grand larceny is "necessarily included in that with which he [the relator] is charged in the indictment." The crime of grand larceny is not necessarily included, for some *Page 366 essential elements of that crime are not essential elements in the crime charged, and the facts alleged in the indictment, though sufficient to constitute the crime charged therein, would not be sufficient to constitute the crime of grand larceny. An analogous question is presented where a defendant moves for arrest of judgment "on a plea or verdict of guilty" on the ground that the facts stated in the indictment do not constitute a crime. (Code Crim. Pro., §§ 331, 467.) Error there may be corrected by appeal, but the judgment entered upon an erroneous determination of a question of law by a court of competent jurisdiction is not a nullity, and may not be challenged by a writ of habeas corpus.
The infirmity inherent in a judgment based upon a verdict or plea where the indictment fails to state facts sufficient to constitute any crime is essentially the same as the infirmity inherent in a judgment based upon a verdict or plea where the indictment fails to state facts sufficient to constitute theparticular crime of which the defendant has been found guilty. In both cases, the defendant has been held to answer for an infamous crime upon indictment found by a Grand Jury, and the court has jurisdiction of the person of the defendant and general jurisdiction of the crime of which the defendant was found guilty, and has jurisdiction to determine whether or not the indictment sufficiently charges that crime. In proper circumstances the County Court of Erie County would certainly have power to render the judgment under which the relator is restrained of his liberty and this court long ago has pointed out that a judgment of a tribunal "competent to render the judgment under some circumstances" bars from discharge in habeas corpus proceedings a person held by virtue of such judgment. (People exrel. Tweed v. Liscomb, 60 N.Y. 559, 569; People ex rel. Carr v. Martin, 286 N.Y. 27; Matter of Morhous v. N.Y. SupremeCourt, 293 N.Y. 131.)
In the case last cited, we have said that: "An appeal to a higher court is ordinarily the appropriate corrective process for error at the trial" (p. 140). No sufficient ground has been shown why an exceptional corrective process is required here. The relator was properly held to answer for the crime charged in the indictment. He sought and obtained the benefit that might *Page 367 accrue to him from a finding of guilt of a crime connected with the same transaction, though not necessarily included in the crime charged in the indictment. The court had jurisdiction to determine whether in those particular circumstances it was authorized to render a judgment which it was certainly competent to render in some circumstances. Its judgment was not a nullity and the defendant who asked the court to render an erroneous judgment in a pending judicial proceeding may not thereafter when it suits his convenience, challenge the judgment by habeas corpus.
The orders should be reversed, the writ dismissed, and the relator remanded to the custody of the warden of Attica State Prison, Attica, New York.