1. Criminal Law 3, 4, 131 — An attempt to break and enter is a misdemeanor for which the maximum punishment is two years imprisonment.
2. Criminal Law 130 — The indictment and not the commitment of the clerk controls, and the punishment may not exceed that for the offense charged in the indictment.
3. Criminal Law 169 — Ordinarily, when the judgment imposed is excessive the cause will be remanded for proper judgment, but when the maximum legal sentence has already been served remand for proper judgment would be vain, so in such instance the cause will be remanded for correction of the judgment, with consecutive sentences subsequently imposed to fall into place on the basis of the correction.
PER CURIAM.
The question presented by the writ is one of law. A sentence of seven to nine years upon a bill of indictment for an attempt to break and enter is not authorized. The crime charged is a misdemeanor. The maximum punishment for the offense is imprisonment for two years. The commitment issued by the Assistant Clerk of the Greene County Superior Court states, "The commitment was for breaking and entering." The commitment must give way to the basic document — the indictment — which charges only an attempt to break and enter.
Ordinarily, when a judgment is imposed in excess of that permitted by law, the cause is remanded for a proper judgment. In this case the maximum sentence allowed has already been served. To send the case back for entry of a proper judgment would serve no useful purpose. The judgment in case No. 1377 entered in Greene County should be corrected by striking the term of imprisonment, "seven to nine years," and substituting, "two years."
The consecutive sentences subsequently imposed will fall into place on the basis of this correction. The cause is remanded to the Superior Court of Greene County for the correction of its record as here indicated. Certificate of the correction will be sent to the Prison Department.
Remanded.