76 N.Y.S. 57 | N.Y. App. Div. | 1902
The appellant presents several alleged grounds of error on this appeal, and considering them in the order in which the errors are alleged to have occurred we have:
First. A motion before the recorder in the city of New York for leave to inspect the minutes of the grand jury was denied except upon filing a stipulation cutting the defendant off from some statutory rights. If the defendant had a right to inspect the grand jury minutes, the condition imposed would have been a fatal error, but the inspection of such minutes is not a right which any indicted person possesses, arid the leave to examine lies in the discretion of the court. (Eighmy v. People, 79 N. Y. 560.) We do not think the discretion was here abused. The motion was. .subsequently renewed and heard upon its merits by Justice Herrick, and again denied. We see no error in this.
' Second. There was no preliminary examination in defendant’s case before a magistrate, and defendant urges that the indictment
Third. The demurrer to the indictment was overruled by the recorder. This was not error. The precise questions presented by this demurrer were passed upon in People v. Herlihy (66 App. Div. 534), and a lucid and exhaustive opinion was then written. The decision of the Appellate Division was affirmed in the Court of Appeals on the opinion of the court below (170 N. Y. 584). The indictment in that case was, in all essential particulars, like the indictment here.
Fourth. While the indictment was in the General Sessions, the defendant applied to a justice of the Supreme Court and obtained a stay of the trial and all proceedings to continue until the decision of a motion to be made to transfer the case to the Supreme Court and to have the trial transferred to some county outside of New York. This stay was modified by the Supreme Court, held by another justice, and the stay as modified was of the trial only. This modified stay was presented to the recorder before the same had been entered of record, and, on its presentation, the recorder disposed of the motions and demurrer hereinbefore mentioned. The error alleged here is the disposition of such matters before the entry of the modified order. I do not think it necessary to determine whether a justice of the Supreme Court has power to interfere with proceedings in a case in the Court of General Sessions of New York before the case has been transferred to the Supreme Court. The stay as modified was operative from the moment it was made, if it was effective at all. Its subsequent entry related back to the time it was granted and made lawful all proceedings in the meantime.
Fifth. The contention of the learned counsel for the defendant that “ the facts adduced in support of the indictment do not consti
The contention of the learned counsel for defendant that defendant’s duty did not extend to the suppression of houses of prostitution in his precinct because the maintenance of such a house is a crime under the Penal Code and not enumerated as a crime in section 315 of the charter, is not tenable. The duty imposed by this section is to “ enforce and prevent the violation of all laws * * * in force in said city.” This includes all the Penal Code laws so far as they are applicable to the city of New York, both felonies and misdemeanors. No argument is needed to support so plain a proposition. We are not impressed with the argument of the learned counsel, that a modified effort to enforce the laws is sufficient in any case, or that police officers have any discretion in the premises. The crime of which Lena Schmitt was guilty was not a technical offense; it required no spying to discover it. It was flagrant, Open, notorious, a public defiance of the police, and all the effective machinery for punishment at their command; obviously this was not a case for regulation but a crime for suppression.
Sixth. The exceptions to the rulings of the learned court taken at the trial, respecting the admission of evidence, present no reversible error. The single exception urged upon defendant’s brief to a ruling of the court admitting in evidence the weekly reports of the defendant stating in effect that No. 27 Stuyvesant street, kept by
The judgment of conviction should bs affirmed.
All concurred.
Judgment of conviction affirmed.