132 Misc. 410 | New York County Courts | 1928
The defendant was convicted by a jury in the City Court of the city of Cortland, N. Y., for operating a motor vehicle while intoxicated, in violation of subdivision 3 of section 290 of the Highway Law (as amd. by Laws of 1926, chap. 732). As the crime was a misdemeanor, said court had jurisdiction of it. (Code Crim. Proc. § 56, subd. 35; Charter City of Cortland [Laws of 1900, chap. 160], § 218, as amd.)
It is the settled practice that on appeals of this kind only such errors will be considered as are specified in the affidavit upon which the appeal is allowed. (People v. Scherno, 140 App. Div. 95.)
The appeal must be heard upon the original return. (Code Crim. Proc. § 763.)
It is claimed by the appellant that his arrest was unlawful and" for that reason the City Court obtained no jurisdiction of him and that the judgment of conviction is void.
It appears from the evidence given upon the trial that the appellant was arrested without a warrant after the alleged crime was committed. Therefore, the arrest may be considered unlawful.
When the defendant was brought before the magistrate an information was made in writing and sworn to by the officer who made the arrest. Upon its face this information clearly and directly set forth facts sufficient to constitute the charge. It complied with the definition of an information given in section 145 of the Code of Criminal Procedure: “ The information is the allegation
In the case of People v. Eberspacher (79 Hun, 410), Judge Cullen, writing the opinion for the General Term, Second Department, stated that “ The general rule is that it is no defense to a criminal prosecution that the defendant was illegally or forcibly brought within the jurisdiction of the court.”
In the case of People v. Iverson (46 App. Div. 301) a judgment of conviction was upheld by the Appellate Division of the Second Department where it appeared that the defendant was wrongfully arrested without a warrant. Judge Woodward wrote the opinion and quoted the principle laid down by Judge Cullen in the Eberspacher case.
In the case of People v. Park (92 Misc. 369), which was an appeal from the City Court of Buffalo to the Erie County Court, the identical question raised here was decided. Judge Laing discussed and analyzed the authorities very fully. His conclusion was that a judgment of conviction should not be set aside because the defendant was illegally arrested.
Gilbert’s Criminal Code (11th ed. 1928) in the footnote under section 177 thereof (at p. 118) states: “ The weight of authority appears to be that if the magistrate has jurisdiction of the crime he acquires jurisdiction of the person when the defendant is brought before him charged with a crime, regardless of the legality of the arrest.”
The above authorities clearly apply to this case. The judgment
The return of the city judge on this appeal shows that the juror O’Leary was excused for cause, because he was prejudiced and had an opinion concerning this particular case which would require evidence to remove. He stated that he could not be a fair juror. The ruling of the court in excusing him was correct.
The return shows as to the juror Wright that the only ground upon which defendant’s attorney sought to have him excused for cause was that the juror said he had work to do and would prefer to be excused. He further states that this would not affect his verdict. The court was correct in refusing to allow the defendant’s challenge for cause to this juror.
The return shows that the juror Allen asked the court concerning the length of the case, stating that he did not wish to be tied up two days, because of the very critical condition of his mother. There was nothing in the conversation between the court and this juror which would in any way affect his qualifications. Consequently, the defendant’s challenge for cause of this juror was properly denied.
The return shows that full opportunity was given to defendant and his attorney to have the record of the trial contain everything that he desired.
The return does not show that any of the defendant’s requests to make a record of what transpired at the trial were denied.
The appellant in his affidavit for an allowance of an appeal claimed as one of the grounds therefor that he was examined against his consent and was forced to an examination by Dr. Kelley while under arrest at the police station. There is no evidence in the return to warrant the appellant’s making such a statement. It appears that Dr. Kelley saw the appellant soon after his arrest and talked with him. No physical examination was made other than such as could be made by observation and conversation. The appellant, himself, in his own evidence, does not claim that any force or compulsion of any kind was applied to him. It would seem that the opinion of a physician as to whether or not the appellant was in an intoxicated condition would be very important and helpful in determining the question at issue. It is the practice in this kind of a case to call in a physician to examine the accused.
It has been held lawful for physicians on behalf of the People to examine defendants in custody as to their mental condition. (People v. Truck, 170 N. Y. 203; People v. Van Wormer, 175 id. 188.) In view of these authorities it cannot be held that the defendant’s constitutional rights were violated in this case. The
The claim that the trial court committed errors in admitting certain other evidence upon the trial is not sustained. The evidence of Mrs. Keeling as to the transaction and her injuries is material, relevant and admissible. The question of the admission of the certificate of conviction for public intoxication of the defendant is provided for by statute. It was for the jury to decide whether the defendant in this case was the person mentioned in the certificate.
From the return and the evidence it appears that the defendant had a fair and impartial trial, that there is sufficient evidence to support the verdict of the jury beyond a reasonable doubt and that the substantial rights of the defendant were not prejudiced in any manner. The sentence imposed was not an unreasonable one, taking into consideration the nature of the crime and the prior convictions of the defendant.
I find and decide that the judgment of conviction of the defendant in the City Court of the city of Cortland is valid and should be affirmed.
An order may be entered affirming the conviction and judgment of the City Court and directing the execution of the sentence imposed therein.
