186 Misc. 1041 | N.Y. Sup. Ct. | 1946
The relators were charged with violation of subdivision 3 of section 2092 of the Penal Law and were tried and convicted in the Court of Special Sessions. The section in question provides as follows: “ Unlawful assemblies. Whenever three or more persons: * * * 3. Being assembled attempt or threaten any act tending towards a breach of peace, or an injury to person or property, or any unlawful act; Such an assembly is unlawful, and eVery person participating therein by his presence, aid or instigation, is guilty of a misdemeanor. But this section shall not be so construed as to prevent the peaceable assembling of per sons, for lawful purposes of protest dr petition.” (8 Holdsworth on History of English Law, p. 326; 2 Bishop on Criminal Law [9th ed.], § 1257.; People v. Most, 128 N. Y. 108.)
The relators challenge by writ of habeas corpus the lawfulness of their detention. They contend that no crime has been committed and therefore no jurisdiction could have been obtained by the Court of Special Sessions which tried, convicted and sentenced them. This court, cannot, upon a writ of habeas corpus, call witnesses and take evidence to determine whether or not a crime was committed. It is well-settled law in this State that one who is charged with a crime
In the Magistrate’s Court the relators admitted that they had been present at the meeting held the night before. Thereupon they were included in the information together with another participant who had been arrested at the meeting. All of the defendants waived a hearing before the Magistrate and were held for the Court of Special Sessions. The jurisdiction of the Magistrate’s Court over the subject matter was acquired when the information, charging the relators with unlawful assembly, was laid before it. Literally, they were then informed of the crime charged. (Shappee v. Curtis, 142 App. Div. 155, 157-158; People v. Baxter, 178 Misc. 625, 627.) The Court of Special Sessions has “ exclusive jurisdiction to hear and determine all charges of misdemeanor committed within the city of New York, except charges of libel.” (N. Y. City Crim. Cts. Act, § 31, subd. 1; L. 1910, ch. 659.) That court obtained jurisdiction of the subject matter and person of the relators when the information was filed. (People v. Sellaro, 178 App. Div. 27, affd. 221 N. Y. 662; People v. Perrin, 170 App. Div. 375.)
It does not matter if he is arrested illegally (People v. Baxter, supra; People v. Ostrosky, 95 Misc. 104, 110), or appears voluntarily (Foster v. Smith, 10 Wend. 377, 379; People v. Yerman, 138 Misc. 272, 273), or appears in response to a summons instead of a warrant (People v. Hagan, 138 Misc. 771, 773), or is arrested illegally without a warrant (People v. Eberspacher, 79 Hun 410; People v. Iverson, 46 App. Div. 301; People v. Park, 92 Misc. 369; People v. Dennis, 132 Misc. 410, 412). Arrest or accusation need not o.ccur at the time of the commission of the crime to give the court jurisdiction. The relators’ presence at the meeting was sufficient to charge them with participating in an unlawful assembly (if in fact and law it was “ unlawful ”) whenever and by whatever means they later appeared in court. I find no support for the contention that in order, to constitute the crime of unlawful assembly the person charged with having participated therein must be arrested while the assembly is in progress. Arrest before the assembly is dispersed is not an essential element of the crime of unlawful assembly as defined by section 2092 of the Penal Law.
It is my conclusion, therefore, that the Trial Court had jurisdiction of both the subject matter or crime and the persons of the relators, and that relief from any claimed errors of the Trial Court should be sought by application to that court or by appeal. Such relief is not available to the relators on a writ of habeas corpus. (People ex rel. Marshall v. Wilson, 235 App. Div. 284, 285.) The writs are dismissed and the relators remanded.