One question presented by this appeal is whether a defendant charged with felony murder, although acquitted of that charge, may nevertheless be convicted of the underlying felony even though it is not a separately charged crime. I think not, on constitutional grounds. Secondly, after having his conviction affirmed through the Court of Appeals and never having raised the question, may he do so now by habeas corpus, alleging the trial court’s lack of jurisdiction over the subject matter? My conclusion is in the affirmative.
The relator was indicted on three counts — common-law murder, felony murder and possession of a weapon as a felony.
The felony murder count charged that the relator on or about March 15, 1968, acting in concert with others,' “ while engaged in the commission of the crime of Robbery and in the course of such crime and in the furtherance thereof, and in immediate flight therefrom, caused the death of Geobge Blum, not a participant in the crime, by shooting him with a pistol. ’ ’
The proof at the trial amply demonstrated that the relator and a companion held up a taxi driver and that, after the robbery was completed and although the taxi driver offered no resistance, the relator opened the door of the taxi and shot and killed the driver. However, the question is not whether the relator committed these reprehensible acts, but whether he was legally tried and convicted for them.
The relator correctly contends that the conviction for robbery was in contravention of his constitutional rights set forth in section 6 of article I of the New York State Constitution and the due process clause of the Fourteenth Amendment of the United States Constitution.
There can be little doubt that a defendant may not be convicted of a capital or otherwise infamous crime unless on indictment of a grand jury (see N. Y. Const., art. I, § 6). Seeming exceptions to this rule provided for by statute and by case law which permit conviction for an inferior degree of the same crime or an attempt to commit it (former Code Crim. Pro., § 444), or for conviction of a lesser crime necessarily included in the *175crime charged (former Code Grim. Pro.; § 445, now GPL 300,50), do not violate the constitutional mandate, since a defendant is sufficiently notified of the nature and character of the crimes to the end that he can prepare his defense. These sections are merely declaratory of the common-law rule applicable to crimes of the same generic character (see People v. Miller, 143 App, Div. 251, affd. 202 N. Y. 618).
However, as was unequivocally pointed out in People v. Nichols (230 N. Y. 221), the underlying felony in a felony murder is not such a “lesser included crime”. Its function is merely to prove one element of the homicide, i.e., malice or a willful and felonious intent (see, also, People v. Lytton, 257 N. Y. 310; People v. Jackson, 20 N Y 2d 440, 450). In Nichols, in answer to the defendant’s argument that it was error not to submit the robbery issue to the jury as a separate crime, the court said (pp. 225-226): “ We think there is no foundation for this argument and that it entirely misinterprets the part which evidence of engagement in the commission of another felony performs in establishing the crime of murder, for which the defendant was indicted and of which he has been convicted. The commission of the crime of burglary or .robbery was not ‘ necessarily included ’ in the crime of murder with which defendant was charged. It was not included therein at all in the sense in which defendant argues. The crimes of murder and burglary are substantively and genetically entirely separate and disconnected offenses. ” This illustrates the fallacy of the People’s position in this case that it was proper for the jury to have found the defendant guilty of robbery as though it were a separately charged crime.
It is my opinion that habeas corpus does lie to vacate the conviction for robbery, despite the failure to raise the error at the trial or on direct appeal from the judgment.
Fundamental questions of jurisdiction of the subject matter are not waived in a criminal case by the defendant’s failure to object or even his acquiescence in the procedure. As was stated by the Court of Appeals in People ex rel. Battista v. Christian (249 N. Y. 314, 318-319): “Many judicial opinions can be found in which declarations are made that constitutional rights and privileges may be waived. Most of these expressions occur in civil actions (Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447, 453; Mayor, etc. v. Manhattan Ry. Co., 143 N. Y. 1, 26; People ex rel. McLaughlin v. Police Comrs., 174 N. Y. 450, 456), but some also appear in criminal cases (Pierson v. People, 79 N. Y. 424, 429; Diaz v. U. S., 223 U. S. 442; People v. Gowasky, *176244 N. Y. 451, 463). From this mass of opinions and decisions, the rule can he deduced that waiver is not permitted where a question of jurisdiction or fundamental rights is involved and public injury would result. A privilege, merely personal, may be waived; a public fundamental right, the exercise of which is requisite to jurisdiction to try, condemn and punish, is binding upon the individual and cannot be disregarded by him. The public policy of the State as expressed in the Constitution, takes precedence over his personal wish or convenience. Article 1, section 6, proceeds far beyond the point of conferring á mere personal privilege. Unqualifiedly, it prohibits the trial of any one charged with infamous crime except on presentment or indictment by a grand jury. Until the grand jury shall act, no court can acquire jurisdiction to try. In the most solemn and absolute language the Constitution dictates the only method by which one can be held to answer for murder, burglary, arson or any other infamous crime. Without the prescribed action by a grand jury,,all our other tribunals are powerless to proceed. Such action is the foundation of jurisdiction.”
Even affirmance of a judgment void for want of jurisdiction does not change its character and release may thereafter be obtained by habeas corpus on the ground of want of jurisdiction (39 C. J. S., Habeas Corpus, § 16, p. 457).
Strict adherence to these tenets has not' been total. In People ex rel. Wachowicz v. Martin (293 N. Y. 361) it was held that where, in satisfaction of the indictment, the defendant pleaded guilty to a crime for which he had not been indicted and which was not a lesser included crime he would not be permitted to challenge the legality of the procedure by habeas corpus, since it would have been correctable on appeal. However, later cases have limited this exception to cases where a guilty plea was taken .(People v. Englese, 7 N Y 2d 83). People v. Foster (19 N Y 2d 150) also makes the point that, although a defendant can bargain for a plea of guilty to a nonexistent uncharged crime, the situation would be different where a jury’s verdict is involved, citing People v. Brown (21 A D 2d 738).
Our present case is also to be distinguished from People ex rel. Harrison v. Jackson (298 N. Y. 219), which disallowed a writ of habeas corpus where a- court having general jurisdiction of the person and the subject matter made a factual determination as to the defendant’s age in connection with sentencing. It was held that such determination was proof against collateral attack, but the case is different where the *177defect in jurisdiction appears on the face of the record as it does here.
Another aspect of this question was presented in People ex rel. Prince v. Brophy (273 N. Y. 90), which held that where a defendant requests that a plea of guilty he accepted to a crime not charged in the indictment, but which indictment could have been amended to include such charge on his consent or, in view of the facts, even without his consent, a writ of habeas corpus would not be sustained.
No case appears to have gone so far as to hold that the constitutional right to be convicted of a capital or otherwise infamous crime only after indictment by a grand jury is lost by reason of the failure of a defendant to object to the submission cf the uncharged crime to a jury, or as to construe the matter as other than jurisdictional when there is a trial on the merits.
Contrary to the majority view that“ the trial court did not lose jurisdiction by making an error which the defendant could have corrected on appeal and elected not to attempt ” (emphasis supplied), it is my position that the trial court never acquired jurisdiction
There is no merit to the relator’s contention that if the robbery conviction falls the rest of the judgment may not stand.
Therefore, I would reverse and sustain the writ only to the extent of vacating the relator’s robbery conviction and sentence.
Martuscello, Brennan and Munder, JJ., concur with Hopkins, J.; G-ulotta, P. J., dissents and votes to reverse the judgment and sustain the writ to the extent of vacating the robbery conviction and sentence, with an opinion.
Judgment affirmed, without costs.