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People ex rel. Hubert v. Kaiser

Supreme Court of New York, Appellate Division

May 10, 1912

HARRY M. KAISER, as Warden and Agent of Clinton Prison, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Appellant.

Page 542

APPEAL by the defendant, Harry M. Kaiser, as warden, etc., and by the People of the State of New York, from a final order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1912, as resettled by an order entered in said clerk's office on the 16th day of April, 1912, discharging a prisoner on habeas corpus.

Also a motion by the relator, Martin F. Hubert, to dismiss the appeal herein.


Thomas Carmody, Attorney-General, Charles S. Whitman, District Attorney of the County of New York [Charles F. Bostwick and Robert S. Johnstone, with him on the brief], and Arthur S. Hogue, District Attorney of the County of Clinton, for the appellants.

Mirabeau L. Towns, for the respondent.


On March 22, 1907, the grand jury of the county of New York presented an indictment to the Court of General Sessions against Folke Engle Brandt containing three counts, charging him with the crimes of burglary in the first degree, grand larceny in the first degree, and criminally receiving stolen property, respectively. He appeared in court with counsel on March 25, 1907, and pleaded not guilty. On March 28, 1907, by leave of the court, he withdrew his plea of not guilty and pleaded 'guilty of burglary in the first degree,' of which an entry was made upon the minutes of the court. It does not appear whether his counsel was in court at the precise time of changing his plea, but it does appear by an affidavit read on his behalf in this proceeding that at that time the judge presiding

Page 543

requested the affiant, then an attorney in good standing, who happened to be in court on other business, to ascertain whether he understood the proceeding, and, in compliance with that request, said attorney interrogated him and ascertained that he did. The stenographer's minutes show that, after the plea of guilty was received, the prisoner was sworn and interrogated at length by the court respecting his antecedents and the circumstances of the crime. In the course of that examination he admitted that he entered the dwelling house of Mortimer L. Schiff at night, gaining admission through a basement gate, an ash hoist and a door into the cellar; that he armed himself with a bowling pin and a carving knife, went to Mr. Schiff's room, the location of which he knew, lay in wait for two hours, and upon Mr. Schiff's return assaulted him with the bowling pin. He asserted that he found the basement gate open, the hoistway uncovered, and the cellar door partly open for ventilation; that his purpose was to obtain pecuniary assistance, and he denied that he took any articles of jewelry. Among other questions put to him and answers given were the following:

'Q. You know now, at present, at this moment--you fully appreciate what you are saying, do you not? A. Yes. Q. You know you have entered a plea of guilty, to an indictment charging you with the crime of burglary in the first degree? A. Yes, sir. Q. You know what the word guilty means--you confess to the commission of that crime? A. Yes.' At the close of that examination he stated: 'I have nothing more to say, but prefer to consult with my own lawyer.' On April 4, 1907, he appeared in court for sentence, represented by counsel, the attorney whom the court had asked on March twenty-eighth to ascertain whether he understood the proceeding, and who, according to said affidavit, had in the meantime been requested by Brandt to represent him. Said counsel made an appeal to the court for clemency but, although he stated that both he and his client realized the gravity of the situation, he made no request for leave to withdraw the plea of guilty. He did, however, produce certain articles, which he said were found in the prisoner's possession and belonged to Mr. Schiff, evidently the articles of jewelry which the prisoner had under

Page 544

oath on March twenty-eighth denied taking, and stated that the prisoner desired to give them up and to come before the court 'in a state of deep repentance.' At the conclusion of the remarks of counsel, a detective sergeant was sworn, a report respecting the prisoner's record made by the witness to an inspector of police was read, and a check was produced which the prisoner first denied, and then admitted, forging. At the conclusion of the proceedings on April fourth the court sentenced the prisoner to imprisonment in a State prison for the term of thirty years, and upon a commitment regular in form, reciting a conviction by confession of burglary in the first degree, he was committed to Sing Sing prison and later, pursuant to law, was transferred to Clinton prison. On February 9, 1912, a writ of habeas corpus returnable at the Special Term, New York county, was allowed by a justice of the Supreme Court upon the petition of the relator, who styled himself 'the next friend of Folke Engle Brandt.' The defendant returned that the prisoner was detained by virtue of a judgment of conviction of the Court of General Sessions of the Peace of the city and county of New York. A copy of the commitment was attached to the return, and the original was produced for the inspection of the court. A traverse, verified by the relator, 'to the best of his information and belief,' not by the prisoner as is required by section 2039 of the Code of Civil Procedure, was filed in which it was averred among other things that Brandt was never tried for the crime charged in the indictment and never pleaded guilty. The indictment, the stenographer's minutes of the proceedings thereon, a certified copy of the court minutes taken from the clerk's minute book and the affidavit hereinbefore referred to were read in evidence, as the order appealed from recites, in support of the traverse, and upon the record thus made the matter was submitted to the court for decision with the acquiescence of all parties, and thereupon an order was entered discharging the prisoner from the custody of the defendant under the said judgment of conviction and remanding him to the custody of the warden of the city prison of the city of New York to await trial on the indictment of March 22, 1907. From that order as resettled, the Attorney-General and the district attorneys of New York and Clinton

Page 545

counties have appealed in the name of the People of the State ...

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