On the 21st of November, 1895, the relator pleaded guilty to a charge of leasing a house in the city of Ogdensburg for the purposes of prostitution." The proceeding was had before the recorder of the city of Ogdensburg, sitting as a Court of Special' Sessions. Upon such plea sentence was suspended, and the relator suffered to go at large until the 4th day of December, 1895, when, being again before the recorder, sentence was imposed by him of confinement in" the Monroe County Penitentiary for the term of six months.
On this proceeding the sole claim of the relator for her discharge appears to be that the sentence was void because the recorder \ybs, functus officio in that case and had no authority, after allowing a prisoner to go upon a plea of guilty, to again subject her to his jurisdiction.
I have no doubt but that if her claim is well founded she may be discharged upon this proceeding notwithstanding' the i apparent exclusion by section 2016 of the Code of Civil Procedure in habeas corpus proceedings of cases of detention by virtue of a final judgment of a competent tribunal of criminal *618jurisdiction. The Constitution gives the'remedy of habeascorpus in cases of illegal detention and the. legislature cannot.' narrow its scope. Tweed Case, 60 N. Y. 559.
c" There have been various cases holding that, when a magis- ' trate tries .a criminal sitting as a Court, of. Special Sessions, the-court-is organized pro hac vice only,'and,, with the end of that’ case by judgment, which should follow conviction or a plea of. guilty, the Court of Special Sessions loses its jurisdiction to-do aught farther in that "criminal proceeding.. Starks' Case, N. Y. St. Repr. 234; Smith's Case, 28 id. 306; Carter Case, 15 id. 640.
It is unnecessary, however, to consider these decisions as- , ■conclusive'upon the question, here involved,'for"-those, were cases where the magistrate had imposed sentence, and had, therefore, completed the work of the court; ; It matters not . that the sentence imposed by him was void, for' he had no-power to set aside or disregard his own action, and impose a. - new sentence.
. The whole theory of the right to suspend sentence is based! ■ upon a different exercise of power than that of' the imposition ' of sentence. If ■ Courts' of Special Sessions have power to-suspend sentence, this implies the power, at the expiration of 1 the suspension, to complete the work. Otherwise the-' announcement of a suspension of a sentence would' be a discharge. A suspension means an interregnum' of the period . between conviction and final judgment. The power is worthless, and- does not in fací exist, if a suspended right to impose a sentence may not be exercised at the. termination of the period of suspension.
Do Courts of Special Sessions have the power to suspend 1 áentencé ?■ Dp to the year 1893 there was no- statutory power-given to any courts in this state to suspend sentence, but that, courts of "record had such power inherently is beyond doubt. Forsyth Case, 141 N. Y. 288.
.1 am-cited to no case by. either side which withholds from. , Courts of Special Sessions the same power as criminal courts, of record have in this respect.-. Why do courts of record have; *619this power ? It is manifest that it is a common-law power flowing incidentally from a right to impose punishment. It is assumed that a court which may punish may also fix the time when the sentence defining the punishment shall be passed, and may withhold punishment entirely unless their power be otherwise limited by express statutory enactment.
Courts of Special Sessions act within a much narrower sphere/than those which have the power to try graver causes of offenses, but within that restricted sphere have all the powers incidental to the proper discharge of. duty. If* they may not sentence for long terms, it is still just as essential to the exercise of the power to sentence at all that they shall be able to appoint the day when sentence shall pass, or to suspend sentence entirely or for a limited period. I can see no distinction between the incidental powers of courts in those respects, except as to the term of imprisonment.
This power is recognized, if not expressly given, by section 12 of the Penal Code, which provides as follows-:
“ The several sections of this Code, which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed; but such court may in its discretion suspend sentence during the good behavior of the person convicted, where the maximum term of imprisonment prescribed by law does not exceed ten years-and such person has never before been convicted of a felony.”
This power to suspend was added to the section by the legislature of 1893, and modifies the provision of the Revised Statutes in regard to Courts of Special Sessions, now incorporated in section 717 of the Code of Criminal Procedure, which requires, upon a plea of guilty or conviction, the court to render judgment thereon of fine or imprisonment, or both.
It may-also be fairly argued that, for dBl the purposes of their action, Courts of Special Sessions are, by the Code of Criminal Procedure, section 11, now* made courts of record, except as to the provisions of the Constitution providing for the removal of magistrates which may hold such courts.
*620Whether, .by analogy, the provision óf the Codé of Criminal Procedure limiting the term in which the sentence may be imposed (§ 470a) is applicable to courts of Special Sessions or not is immaterial to tire consideration of the legal question here involved.
. It may, however, be fairly-deemed a wise subject for legislative action to have the powérS Of magistrates sitting a.s Courts of Special Sessions more clearly defined’ in the respects indicated. ■ .
• The prisoner is remanded to the custody of the superintendent of the penitentiary..
Prisoner remanded..