21 N.Y.S. 381 | N.Y. Sup. Ct. | 1892
The relator was an agent for the society for the prevention of crime, and as such agent he made a complaint before the police justice, in which he charged a certain saloon keeper with a violation of the excise law; and upon the defendant’s request a preliminary hearing was had, on which he was represented by counsel. The counsel of the society appeared for the complainant, but were forbidden by the justice to take any part in the proceedings, upon the ground that, as they neither represented nor had authority from the district attorney, they could not act as counsel for the complainant. It is true that the order recites that the relator, an agent of the society, was engaged in the prosecution of his complaint in his individual capacity, and apart from any connection with the society. But this we do not regard as material; and, if it were, we think it is clearly made to appear that, while the relator was the complainant, his action in making the complaint was as agent for the society, and that it was in the discharge of his duty as such agent that be was prosecuting the complaint. The question, however, presented, is whether private counsel can appear for a complainant upon a preliminary hearing before a police magistrate. Section 203 of the Code of Criminal Procedure reads as follows:
“The magistrate may also exclude from the examination every person except the clerk of the magistrate, the prosecutor and his counsel, the attorney general, the district attorney of the county, the defendant and his counsel, and the officer having the defendant in his custody. ”
It is insisted, in support of the view taken by the learned judge below, that the words, “the prosecutor and his counsel,” mean the district attorney or the representative of the district attorney; and to enforce