Relator-appellant, having been four times found guilty of felonies in this State (in 1925, 1928, 1932 and 1942), was, as a consequence of the last of those convictions, sentenced, as a fourth offender, to serve a prison term of from twenty years to life. In 1946, he brought this habeas corpus proceeding, alleging that on the date (September 22, 1925) of the commission of the offense of which he was first convicted, he was in fact not yet sixteen years of age. It is his contention here, and an Arizona birth certificate attached to his petition and presented to Special Term in this proceeding purports to show, and Special Term has herein made a finding, that he was born on October 23, 1909. On the return of the writ there was a hearing and testimony was taken, at the close of which the Special Term Justice held, as fact, that relator's 1925 offense had been committed when relator was only fifteen years old. Accordingly, the writ was sustained. After certain other procedural steps to which it is not necessary to refer, Special Term made an order sending relator back to the court which had sentenced him as a fourth offender in 1942, to be resentenced as a third offender.
The People appealed, from the order sustaining the writ and ordering resentence, to the Appellate Division, Third *Page 230 Department, which reversed the order on the law and dismissed the writ. The memorandum opinion of the Appellate Division pointed out that at the time of the first criminal judgment against him, relator had given his age as twenty-one, and held that since (according to the Appellate Division) the question of fact (as to his age) "was within the jurisdiction of and adjudicated in the court of original jurisdiction", it could not be reviewed or litigated in a habeas corpus proceeding. (272 App. Div. 970.) It is to be kept in mind that the Appellate Division's reversal was on the law, with no interference with the facts found below, so we in this court must start out with an unreversed finding in relator's favor, on the question of the date of his birth, which finding is binding upon us at this point. Therefore we approach the case on the basis that it has now been established that relator was fifteen years old only, when he committed the first, or 1925, offense.
So far as we can discover, no issue as to relator's date of birth had been raised, litigated or decided at his 1925 trial in the County Court of Kings County. So far as appears, there was no mention of his age in those County Court proceedings until November 23, 1925, four weeks after the jury had found him guilty. On that date, when relator came up for sentence he was, apparently, asked his age (by whom it does not appear) and one of the indorsements then made on the back of the indictment says this: "Age: 21." Presumably, that, with other information set down when relator's "pedigree" was taken, was elicited from relator, but, even so, the process was not — indeed, had no resemblance to — the trial of an issue of fact. It was a mere gathering of data, for the court's information in sentencing and for statistical purposes (Code Crim. Pro., § 485-a; see Peopleex rel. Shepherd v. Martin, 267 App. Div. 1041), although it did give the prisoner an opportunity to claim he was under age (if indeed he then knew how old he was). Incidentally, section 485-a does not direct that the defendant be questioned as to his age and, it should be remarked, also, the clerk's minutes of the 1925 criminal case do not show that relator was represented by counsel thereat. All in all, it seems plain enough that there was no litigation or decision, on the 1925 trial, of relator's age, and certainly it cannot now be *Page 231 said that the jurisdictional fact as to his age was conclusively determined against him. Accordingly, the way is open for this collateral attack on the 1925 judgment, on the ground that the County Court had no jurisdiction of the offense, in that there was absence of a requisite jurisdictional fact. That age was a jurisdictional fact is indisputable. Under the laws of this State, as they now are and as they were in 1925 (see L. 1924, ch. 254, §§ 2, 7; Penal Law, § 2186), "the only crimes which a child under sixteen years of age is capable of committing are treason, murder in the first degree and murder in the second degree; and * * * to those crimes alone, in the case of such a child, have the criminal courts jurisdiction" (People v. Murch, 263 N.Y. 285,290; see People v. Roper, 259 N.Y. 170, 174). The Murch opinion in this court says that as to crimes other than those just listed, a verdict of guilty rendered against a person under sixteen years of age is a "nullity under the existing statutes" (supra, p. 291). Of course, if the County Court had in 1925 tried out, as a disputed issue of fact, this very question as to appellant's being over or under sixteen, the resultant finding of fact would have had to stand unless and until reversed on direct review, that is, on appeal from the judgment of conviction; but, since there was no such trial or determination in 1925, the fact issue remained open, and the presumption of the County Court's jurisdiction was a rebuttable presumption of fact which could be rebutted in a later proceeding and has now been successfully so rebutted in this present proceeding (see People ex rel. Frey v.Warden, 100 N.Y. 20, 26; and see Judge VANN'S enlightening opinion in People ex rel. Scharff v. Frost, 198 N.Y. 110,116, quoted with approval in People ex rel. Hubert v. Kaiser,206 N.Y. 46, 53). In such a situation, it is traditional practice in this State to permit a later collateral inquiry, by way of habeas corpus, on proof outside the original record, as to the presence or absence of a requisite jurisdictional fact (1 Bailey on Habeas Corpus, pp. 87-91; People v. McLeod, 25 Wend. 483, 571-572; People v. Cassels, 5 Hill 164, 168; Matter ofDivine, 21 How Prac. 80, 82; People ex rel. Sinkler v.Terry, 108 N.Y. 1, 12; People ex rel. Danzinger v.Protestant Episcopal House of Mercy, 128 N.Y. 180, 189; Peopleex rel. Perkins v. Moss, 187 N.Y. 410, 418; People ex rel.Albanese v. Hunt, *Page 232 266 App. Div. 105, affd. 292 N.Y. 528; People ex rel. Carr v.Martin, 286 N.Y. 27, 32; People ex rel. Ray v. Martin,294 N.Y. 61, 65). The decisions of this court, over the years, as to the general scope and coverage of habeas corpus, are numerous and at some points difficult to construe and apply. But as to the availability of that particular remedy to reach a question, such as we have here, of nonexistence of a jurisdictional fact not litigated or decided in a prior criminal prosecution, there is no doubt at all, as witness all the decisions above cited, right down to People ex rel. Ray v. Martin (supra) decided in 1945. Indeed, People ex rel. Jones v. Brophy (287 N.Y. 687, certiorari denied 316 U.S. 669) is a recent case in this court, where, although decision went against relator on the merits, he was allowed to use a habeas corpus writ to put before the court the identical question here presented. The Federal cases state the same rule (see discussion in United States ex rel. Emanuel v. Jeager, 117 F.2d 483, 487; United States ex rel. Sutton v.Mulcahy, 169 F.2d 94, [C.C.A.2d]). In all the cases cited in this paragraph the relator's habeas corpus writ was issued, although he could have raised the same point on his trial, so that is of no consequence. Relator here had, accordingly, a clear right, on the return of his writ in this proceeding, to present such proof as he had, that he was born later than September 22, 1909. That proof, adequate for the purpose, was presented at Special Term, and accepted by that court. It follows that the Appellate Division's reversal on the law, of the Special Term order, was erroneous.
It is argued that this case is not one for habeas corpus since appellant's latest sentence as a fourth offender, in 1942, on which sentence he is now being held, was rendered by a court which had at that time jurisdiction of his person and of the charge against him (People ex rel. Carr v. Martin, 286 N.Y. 27, supra; People ex rel. Wachowicz v. Martin, 293 N.Y. 361). This could almost be called begging the question, since the County Court of Kings County, which adjudged appellant a fourth offender in 1942, was the same court which had illegally and without jurisdiction dealt with appellant in 1925, for a crime committed while he was under age, and its only basis for holding him to be a fourth offender in 1942 was its own prior *Page 233 void judgment of 1925. But, even if we concede that the sentencing court in 1942 was possessed of jurisdiction of relator's person and of the subject matter, there would still be in this situation another sure ground for habeas corpus. It is not, and never has been, strictly true that only purely jurisdictional questions can be reached by habeas corpus. The writ is used also where, though all jurisdictional facts were in order, the sentencing court has attempted to exercise a power it did not possess (see People ex rel. Frey v. Warden, supra, 100 N.Y. at p. 24; People ex rel. Tweed v. Liscomb, 60 N.Y. 559,568; People ex rel. Kemmler v. Durston, 119 N.Y. 569,574) by handing down an excessive or otherwise illegal sentence (People ex rel. Devoe v. Kelly, 97 N.Y. 212; People ex rel.Marcley v. Lawes, 254 N.Y. 249). There are numerous decisions in this court which say that when a defendant has been incorrectly adjudged to be a subsequent offender — in that one of his earlier convictions should not have been counted — habeas corpus is his right (People ex rel. La Placa v. Murphy,277 N.Y. 581; People ex rel. Carollo v. Brophy, 294 N.Y. 540;People ex rel. Newman v. Foster, 297 N.Y. 27; People ex rel.Milton v. Jackson, 297 N.Y. 708). Any distinctions between those cases just cited and this one are differences of detail only, and nondeterminative. The real question here, as in the cited cases, is as to the correctness of a sentence as a fourth offender. It has become traditional in this State to assign habeas corpus as the procedure for reaching such questions.
The suggestion is made that appellant should have moved in the County Court of Kings County for relief, by making a so-called"coram nobis" type application to set aside the illegal 1925 conviction. There are two answers to that suggestion. First, even though such a motion was a permissible procedure, it does not follow that the great writ of habeas corpus was not relator's to employ instead, if he so desired. Another sufficient answer is that there is more than a little doubt, under Matter of Hogan v. Court of General Sessions (296 N.Y. 1) as to whether "coramnobis" would lie, on this state of facts. We should not put ourselves in the position of driving this man from pillar to post. If it be true — as we must assume at this point — that he was indicted, tried and sentenced in *Page 234 1925, when the plain statutory law of the State forbade — then we must give him his new day in court. Following Matter of Hogan v. Court of General Sessions (supra) we might have to hold that coram nobis cannot be used. I read Matter of Morhous v.New York Supreme Court (293 N.Y. 131, 140) cited by the Appellate Division here, as saying that when a fundamental right has been withdrawn or abridged, and when there is no other remedy at hand, habeas corpus will lie, despite technical objections thereto (see Bowen v. Johnston, 306 U.S. 19, 27). "Denial of the writ in such case might not accord with its historic purpose and be contrary to the spirit if not the letter of the Constitution of this State as well as of the United States" (Morhous opinion, 293 N.Y. at p. 140).
The discussion of facts in the opinion for affirmance seems to suggest that relator's proof is too meager or suspicious to justify relief. But he did make out a prima facie case (see Penal Law, § 817, as to birth certificate), and the only material fact was duly found in his favor, and so the fact inquiry is closed, as far as we are presently concerned.
The jurisdiction, or lack of it, of the 1925 court depended on the actual facts, and no false or mistaken statements by the defendant could confer jurisdiction. This is a question of subject-matter jurisdiction, which cannot accrue to a court by consent, waiver or mistake, but must be conferred by Constitution or statute. It follows that any holding herein that habeas corpus is not allowable to this relator must necessarily mean that the writ cannot, as matter of law, issue in the case of any underage defendant, who, despite the express prohibitions of our statutes, has been indicted, tried and convicted for felony, but who, through youth and ignorance, has failed to take an appeal from that totally void judgment of conviction. Since such a judgment is void for lack of jurisdiction, no appeal therefrom was necessary to keep this relator's rights alive. And illusory, indeed, is the remedy of an appeal for a defendant who is so ignorant of his true age, or of the protection the law affords him at that age, that he fails to plead his nonage, at the trial. The strong and positive public policy of this State is that those under sixteen years of age cannot be convicted of crimes, and that the courts (other than children's courts) are wholly without jurisdiction to try or *Page 235 sentence such persons. An equally strong and positive, but much older, public policy of this State says that the writ of habeas corpus, the great writ of liberty, is ready at hand to redress such wrongs. Yet an affirmance here, read with the Hogan case (296 N.Y. 1, supra) will mean that if a youth under sixteen years is, through mistake or ignorance, or, indeed, through malice or fraud, unlawfully convicted, nothing can be done about it.
The order of the Appellate Division should be reversed, with costs and the proceeding remitted to the Appellate Division for determination by it upon the question of fact (Civ. Prac. Act, § 606).
THACHER and DYE, JJ., concur with CONWAY, J.; FULD, J., concurs in separate opinion; DESMOND, J., dissents in opinion in which LOUGHRAN, Ch. J., and LEWIS, J., concur.
Order affirmed.