The opinion of the court was delivered by: COOPER
This is the return of a writ of habeas corpus issued in behalf of the relator, who seeks discharge from the custody of the respondent and in place thereof confinement in a county jail of the district as a federal prisoner pending appeal from his conviction and sentence in this court in August, 1937.
In January, 1937, the relator pleaded guilty in the Supreme Court of the state of New York to a felony and was sentenced to 15 years in the state prison at Dannemora, N.Y., where he was received by the respondent on January 19, 1937.
He was serving his sentence at said state prison when in June, 1937, this court issued its writ of habeas corpus ad prosequendum to the respondent, commanding the production of the relator before this court at Binghamton, N.Y., for the purpose of a trial in this court.
The writ provided that upon completion of said trial the relator was to be returned to the said prison.
The respondent obeyed said writ and produced the relator for trial at the Binghamton term of this court, where he was convicted and sentenced in August, 1937, to a term of imprisonment in a federal penitentiary.
While the terms of the sentence are not before the court, the court presumes that the sentence was to begin at the completion of the relator's sentence at the state prison at Dannemora, for the sentence could not become operative until such completion of the state sentence.
The relator appealed from his conviction and sentence in this court, which appeal is still pending.
The relator, contending that he is and since his conviction has been a federal prisoner and not a state prisoner, sued out this present writ of habeas corpus asking that as a federal prisoner he was entitled under rule V of the Criminal Appeals Rules to be confined in a county jail of the district pending the decision upon the appeal.
The respondent in his return shows by affidavit that the relator was taken from Dannemora prison to the federal court at Binghamton by the state prison guards, who at all times had him in their custody both in and out of the federal court at Binghamton, and upon completion of the trial and sentence he was taken by these same guards back to the Dannemora state prison where he has remained until brought before this court at Albany pursuant to the writ now before the court.
The respondent contends that the relator has at all times been a state prisoner since January 19, 1937, fully as much so when upon trial in the federal court at Binghamton as at any other time, and that the writ should be dismissed.
The respondent also urges that a writ of habeas corpus is not the proper procedure to bring this question before the court and asks that the writ be dismissed upon that ground also.
Federal and state courts are courts of different sovereignties. Though they act in the same territory they are on different planes. Each is separate and independent of the other. Neither has any power or jurisdiction over the other.
From the necessity of a harmonious working of the two sovereignties in the same territory, a comity of courts, a modus operandi, has come into existence and is ...