We have presented to us for our consideration a petition for a writ of habeas corpus verified in April, 1946, together with the writ and the minutes of the hearing held thereon. The relator was sentenced as a fourth offender, pursuant *Page 221 to section 1942 of the Penal Law in June, 1942. The claim of the relator is that in September, 1925, at the time of the commission of the first of the four felonies of which he has been convicted, he was under the age of sixteen years and that therefore the County Court of Kings County was without jurisdiction to try or sentence him.
After the taking of testimony, which will later be quoted in full, Special Term sustained the writ and directed relator's return to Kings County for resentence as a third felony offender. The Appellate Division reversed as a matter of law. We think the reversal was correct for two reasons, first, because there was no evidence before the court to justify the sustaining of the writ, and second, because the age of the relator was found as a fact by the trial court and such finding was not reviewable by habeas corpus.
1. The relator was examined as a witness in his own behalf at a hearing on the writ on June 17, 1946. His testimony that he was then thirty-eight years of age completely disproved the allegations of his petition and established that he was more than sixteen years of age at the time of the commission of his first felony in September, 1925. The whole hearing consisted of nine questions and answers and it is as easy to quote them as to epitomize them. The hearing in full is as follows:
"By the Court:
Q. What is your name? A. Alphonse Harrison.
Q. What was your father's name? A. James Harrison.
Q. What was your mother's name? A. Mary Harrison.
Q. Do you know where you were born? A. At Tucson, Arizona."
Objection was made upon the ground that such testimony would be hearsay. There was no ruling and the examination continued.
"Q. Is that the information that you have that you were born in Tucson, Arizona? A. Yes, sir.
Q. What is your age? A. I am 38 now.
Q. Were you ever advised as to where your father was born? A. I could not say for sure, I was told he was born in Tucson.
Q. Were you ever told where your mother was born? A. She was born in New Orleans, Louisiana. *Page 222
Q. What was your mother's maiden name? A. Mary Gant."
That was the oral testimony. By that testimony relator affirmatively established that, since he was then, on June 17, 1946, thirty-eight years of age, he was more than sixteen years of age in September, 1925, and there was no legal justification for sustaining the writ unless it may be found in the exhibits attached to the relator's petition.
The only facts properly established by those exhibits in any way germane to any issue presented were that in November, 1925, the relator swore that he was twenty-one years of age, that he had been born in New Orleans, Louisiana, and that his mother was living; that in June of 1942, the relator swore that he had been born in Tucson, Arizona, that he was thirty-two years of age and that his mother was dead; that in January, 1946, there was filed in the office of the Arizona State Department of Health, Division of Vital Statistics, a "DELAYED CERTIFICATE OF BIRTH" subscribed by Mary H. Gant who on November 13, 1945, in Louisiana swore that she was the mother of the registrant, Alphonse L. Harrison, who had been born on October 23, 1909, in Tucson, Arizona. The abstract of the supporting evidence attached to the certificate shows two documents. The first is a baptismal record from St. Dismas, The Good Thief Church at Dannemora, where relator was baptized on November 26, 1937. The other is a photostat application for social security account dated March 2,1942. The State Registrar of Arizona certified under date of January 22, 1942, that there was no prior certificate of birth of the registrant on record.
On that record there was no evidence to support the order sustaining the writ and it was properly reversed as a matter of law.
2. Before a prisoner may be sentenced to the New York State Reformatory at Elmira certain facts must be established. Section 2185 of the Penal Law reads as follows: "Sentence of malesbetween sixteen and thirty years of age. A male between the ages of sixteen and thirty, convicted of a felony, who has not theretofore been convicted of a crime punishable by imprisonment in a state prison, may, in the discretion of the trial court, be sentenced to imprisonment in the Elmira reformatory, to be there confined under the provisions *Page 223 of law relating to that reformatory." Thus one of the facts to be found by the trial court is that the prisoner is "between the ages of sixteen and thirty". (Penal Law, § 2185). The relator has furnished us with his answers under oath to the trial court (McLAUGHLIN, J.) pursuant to the questioning required by section 485-a of the Code of Criminal Procedure. That section reads as follows:
"Examination of convict before sentence. It shall be the duty of the court in which any person shall be convicted of an offense punishable in a state prison, before passing the sentence therefor, to ascertain by the examination of such convict on oath, and in addition to such oath, by such other evidence as can be obtained, whether such convict had learned and practiced any mechanical trade, and in like manner such other facts tending to indicate the causes of the criminal character or conduct of such convict, as to the court shall seem proper and desirable, and the court shall direct the clerk of the court to enter such of the facts so ascertained, and such other facts as to the court shall seem proper and desirable, upon the minutes of the court, and said clerk shall include a copy thereof in the certified copy of the sentence of such convict which shall be delivered to the sheriff of the county in which such conviction shall be had." Among the answers so made by the relator to the court on November 23, 1925, were that he was twenty-one years of age and had previously been convicted of petit larceny in the same County Court and had served ninety days therefor. The trial court made a finding of fact under section 2185 of the Penal Law which was entered on the clerk's minutes as required by section 485-a of the Code of Criminal Procedure as follows: "The Court being satisfied that the said ALPHONSE HARRISON is 21 years of age and has not been previously convicted and sentenced for a felony; WHEREUPON it is ORDERED AND ADJUDGED by the Court, that the said ALPHONSE HARRISON for the felony aforesaid whereof he is convicted, be imprisoned in the New York State Reformatory at Elmira, there to be dealt with according to law."
Thus the relator's age was one of the facts upon which depended the jurisdiction of the court to act for there may be no *Page 224 judgment of conviction without sentence. (People v. Harcq,292 N.Y. 321, 325-326.) Since the court had jurisdiction of the person and of the subject matter and power to impose the particular sentence, the judgment of conviction is conclusive as to every fact necessarily found in rendering it. The trial court adjudicated the fact of age as a statutory prerequisite to passing sentence. The judgment of conviction so rendered, after the passage of the time allowed for motion and appeal, may not be collaterally attacked for error of fact or law in the exercise of jurisdiction where there is no lack of the requirements of due process. (People ex rel. Wachowicz v. Martin, 293 N.Y. 361,364, 366; Matter of Morhous v. New York Supreme Court,293 N.Y. 131, 134-138; People ex rel. Carr v. Martin, 286 N.Y. 27;People ex rel. Bai v. Brophy, 286 N.Y. 585; People exrel. Wiegand v. Brophy, 261 App. Div. 877, and cases cited, affd. 286 N.Y. 640; People ex rel. Stevens v. Morhous,269 App. Div. 461, 462; People ex rel. Tully v. Fallon, 73 App. Div. 471,473; People ex rel. Davis v. Jennings, 133 Misc. 538, and cases cited; Scott Roe on Habeas Corpus, pp. 26, 27, 64, 294, 295, indicating cases to the same effect in Maine, Florida, Massachusetts, Michigan, New Jersey, Kansas, Minnesota and the Federal courts.)
See, also, the cases collected in People v. Jones (38 N.Y.S.2d 207, at p. 211).
The general rule is stated as follows in 39 Corpus Juris Secundum, p. 456: "Where the court had general jurisdiction of the cause and the person, error in the determination of questions of law or fact on which its jurisdiction in the particular case depends is error in the exercise of jurisdiction, and, in accordance with the general rule, affords no ground for habeas corpus. This rule has been applied to findings as to the age, status, and domicile or residence of a person, and as to whether or not the offense was committed within the territorial jurisdiction of the court * * *."
It should be stressed that this is not a case where the petitioner "alleges in his petition facts sufficient, if established, to show that the judgment fails to satisfy the requirements of due process" (Matter of Morhous v. New YorkSupreme Court, 293 N.Y. 131, 140, supra) for there is no such factual allegation *Page 225 of failure of due process under either State or Federal Constitution. (Matter of Morhous v. New York Supreme Court,supra; Bute v. Illinois, 333 U.S. 640.) Moreover, the relator was represented by Philip Jones as counsel on his trial and testified in his own behalf as is disclosed by the clerk's minutes. (People v. Travis, 257 N.Y. 474, 476.) His answers under oath to the questions put to him by the court under section 485-a of the Code of Criminal Procedure as furnished to us by him and recited in the clerk's minutes disclose that prior to November, 1925, he had been convicted of petit larceny in the same County Court and had served a sentence of ninety days therefor. That imported a finding by the court at that earlier time that he was then over sixteen years of age. (See Penal Law, § 817.) Knowledge of that earlier finding of the same court was thus brought home to the trial court in the instant case. It is not permitted for another court without appellate jurisdiction to set aside a judgment of conviction rendered under the circumstances disclosed here by means of a writ of habeas corpus more than twenty years after the rendition of the judgment, for that would lead to the "chaotic situation" envisioned by Chief Judge LEHMAN in his opinion in Matter of Morhous v. New YorkSupreme Court (supra, p. 140). See People ex rel. Stevens v.Morhous (269 App. Div. 461, 462, supra). Appropriate process for the correction of error was provided but not availed of by relator or his counsel who represented him at the trial. If their failure were to insure to relator a remedy now, then habeas corpus would always be available when a question as to the jurisdiction of the trial court was raised. We decided to the contrary in People ex rel. Wachowicz v. Martin (293 N.Y. 361,supra).
People ex rel. Jones v. Brophy (287 N.Y. 687, certiorari denied 316 U.S. 669) is not to the contrary since, it being clear that the finding that relator was more than sixteen years old at the time of the prior conviction was fully sustained by the evidence, we considered no other question.
The order appealed from should be affirmed.