105 N.Y.S. 677 | N.Y. App. Div. | 1907
This is an appeal from an order denying an application of the defendant for a certificate that it was reasonable- that the charge against him should be prosecuted by indictment. The defendant was charged with a misdemeanor in violating section 266 of the Penal Code by working on a Sabbath day as an engineer on a locomotive engine attached to cars, in moving and shunting the cars from one track to another, making a noise and disturbing the peace of the Sabbath, the same not being a work of necessity. He was committed to await the action of the Court of Special Sessions. He gave bail, then applied for a certificate.
A misdemeanor is misconduct or offense inferior to a felony. As a rule, misdemeanors do not present difficult questions of law or intricate questions of fact. They are not necessarily punished by severe penalties. Though they may be prosecuted by indictment, yet a statutory assignment of criminal law work has committed the trials of misdemeanors in the first instance to the Court of Special Sessions, with the exclusion of libel, which exclusion is significant. This jurisdiction is subject to the power of certain judges to certify that it is reasonable that a charge of misdemeanor should be prosecuted by indictment. (Greater N. Y. Charter,
“ Beasonable ” is a generic word, difficult of adequate definition; but I take it to mean, in such a case as this, just, proper, fair, equitable. So the question is whether it was just and proper that this charge should be tried by indictment, meaning a preliminary investigation by a grand jury and a trial by a court with a jury, and not by a Court of Special Sessions. Without reflecting upon any
While there is no specific provision in the charter authorizing an appeal, the right to review the decision of a single judge, when that involves a substantial right, is generally fundamental and deemed to exist rather than not to exist. (Matter of Brady, 69 N. Y. 215, 220.) This application is like unto a decision of a motion made for a change of venue, which has been held appealable, even in the absence of any specific provision therefor in the Code. (People v. Sarvis, 69 App. Div. 604.) Moreover, if the learned court erred in the refusal of a certificate, I am not clear that there is any other manner of review. In People v. Wilber (15 N. Y. Supp. 435) the General Term of the third department held that it could not, upon an appeal from a judgment of the Court of Sessions, review the refusal of the county judge to -grant a certificate as authorized by section 57 of the Code of Criminal Procedure.
.1 am of opinion that the order should be reversed and the. certificate granted. . -"
Hooker, Gaynor and Miller, JJ., concurred; Rich, J., taking no part.
Order reversed and certificate granted.
See Laws of 1901, chap. 466.— [Rep.