| N.Y. App. Div. | Jan 16, 1920
Section 118 of the Sanitary Code provides as follows: “ No person shall make, prepare, put up, administer, or dispense any prescription, decoction, or medicine, under any false or misleading name, direction, or pretense; nor shall any ingredient be substituted for another in any prescription, nor shall any false or misleading representation be made by any person to any other, as to the kind, quality, purpose, or effect of any drug, medicine, decoction, drink, or other substance, offered
On the 29th of July, 1916, one Cohen, a pharmacist in the employ of the department of health, filed a complaint or information in the form of an affidavit with City Magistrate Daniel J. Murphy, which was sworn to before the magistrate, charging the defendant with a willful violation of these provisions of the Sanitary Code, and charging that the defendant was a dealer in medicinal preparations at No. 225 Chrystie street in the city, county and State of New York, where on the 28th of July, 1916, he made a false and misleading statement to said Cohen with respect to the purpose and effect of “ infantile A S,” which was a drug, medicine or other substance offered to Cohen as a medicine and represented that it was a preventative for all diseases and especially for the disease known as infantile paralysis. The further proceedings before the magistrate and in the Court of Special Sessions are not set forth in the record, but instead thereof the facts upon which the appeal is based were stipulated in writing by the district attorney and the attorney for the defendant. The stipulation shows that the defendant was arraigned before said magistrate upon said information on the 29th of July, 1916, and that “ the proceedings were thereupon transferred to the Court of Special Sessions of the City of New York for trial; ” that no information by the district attorney was filed with the Court of Special Sessions and that the trial was had on the information filed by Cohen; that the defendant before pleading and on pleading in the Court of Special Sessions and upon the trial objected to the jurisdiction of the court on the ground that said information was insufficient and that an information by the district attorney should have been filed; that after the judgment of conviction, the defendant duly moved in arrest of judgment and excepted to the denial of the motion, and that the defendant also duly objected to the sentence upon the ground that the court was without power to impose the same.
The stipulation also provides that the only questions to be presented on the appeal are (1) whether the information states facts sufficient to constitute a crime; (2) whether the Court of Special Sessions acquired jurisdiction to hear and determine the
The appellant claims that the information is insufficient in that it does not sufficiently show that the representations made by the defendant were not true. It must be assumed that the evidence, which is not presented by the record on appeal, sufficiently showed the falsity of the representations and that they were made willfully. I am of opinion that after trial the information should not be construed as strictly as if its sufficiency had been presented by a writ of habeas corpus and that since it follows the language of the Sanitary Code and plainly charges that the defendant willfully made false and misleading representations within the provisions of the ordinance, it should now be deemed sufficient, for it is not essential that preliminary information should be phrased with the same technical accuracy, precision and particularity as may be required with respect to an indictment. (See People v. Abelson, 162 A.D. 674" court="N.Y. App. Div." date_filed="1914-05-29" href="https://app.midpage.ai/document/people-v-abelson-5232685?utm_source=webapp" opinion_id="5232685">162 App. Div. 674; affd., 218 N.Y. 716" court="NY" date_filed="1916-06-13" href="https://app.midpage.ai/document/people-v--abelson-3617237?utm_source=webapp" opinion_id="3617237">218 N. Y. 716; People v. Pillion, 78 Hun, 74" court="N.Y. Sup. Ct." date_filed="1894-05-26" href="https://app.midpage.ai/document/people-v-pillion-5506798?utm_source=webapp" opinion_id="5506798">78 Hun, 74; People v. Polhamus, 8 A.D. 133" court="N.Y. App. Div." date_filed="1896-07-01" href="https://app.midpage.ai/document/people-v-polhamus-5180871?utm_source=webapp" opinion_id="5180871">8 App. Div. 133; People v. Wacke, 77 Misc. 196" court="None" date_filed="1912-06-15" href="https://app.midpage.ai/document/people-v-wacke-5650252?utm_source=webapp" opinion_id="5650252">77 Misc. Rep. 196.)
On the second point which the stipulation provided is to be presented on the appeal, counsel for the defendant attempts to present arguments not warranted by the record and which if presented by the record might require a reversal. He states in his points that the defendant did not consent to the transfer of the proceedings to the Court of Special Sessions consisting of three justices and that the transfer was made over his objection and exception and that these objections were taken in the trial court and that exceptions were taken to their being overruled. Were it not for a concession made by the People, we think, by the facts stipulated and by the stipulation with respect to the points to be presented on the appeal, the defendant would be precluded from so claiming on this appeal, and that with respect to the point now being considered he might well be limited to the question as to whether in any circumstances it was competent for the magistrate as such or for a Court of Special Sessions held by him to transfer the action for trial to the Court of Special Sessions consisting of three
The proceedings before a magistrate with respect to charges of violations of the Sanitary Code were formerly prescribed in and regulated by section 95 of chapter 659 of the Laws of 1910, which is an act in relation to the inferior courts of criminal jurisdiction in the city of New York and defining their powers and jurisdiction, and which is known as the Inferior Criminal Courts Act of the City of New York. That act was amended by chapter 531 of the Laws of 1915 by, among other things, adding “ after article three a new article to be known as article three-a,” and said section 95 was superseded by section 44, contained in the new article, and was repealed by section 39 of that chapter. Said section 95 was confined to violations of the Sanitary Code and sanitary regulations, ordinances and orders, and, so far as here material, it provided that a magistrate after an arrest on his warrant and on the application of the department of health before the commencement of the trial should remit the trial and papers to the Court of Special Sessions but otherwise should proceed with the trial. In People ex rel. Cohen v. Warden, etc. (150 A.D. 419" court="N.Y. App. Div." date_filed="1912-05-03" href="https://app.midpage.ai/document/people-ex-rel-cohen-v-warden-of-the-third-district-prison-5224204?utm_source=webapp" opinion_id="5224204">150 App. Div. 419) we held that where a trial was so transferred under said section 95 it was contemplated that the trial in the Court of Special Sessions should be had on the information before the magistrate and that the provisions of the Code of Criminal Procedure, to which reference has been made, with respect to an information by the district attorney were not applicable. Counsel for the defendant contends that they are applicable to every transfer of a trial by the magistrate or by a Court of Special Sessions held by him to the Court of Special Sessions held by three justices of the Sessions. The People claim that even if an information by the district attorney were required, the filing thereof was not jurisdictional and that appellant was not prejudiced by the failure to file such an information which would be merely a more formal restatement of
“ § 44. Procedure. Whenever a defendant is arraigned before a city magistrate for an offense which may be tried by a Court of Special Sessions held by a city magistrate, such city magistrate after taking the information and depositions and the statement of the defendant in relation thereto, or his waiver, may, with the consent of the defendant, after informing him of his right to be tried by three justices at the Court of Special Sessions provided for in articles two and three hereof, unless objection is made in behalf of the department in charge of the prosecution for a violation of a code, rule or order of such department, or in any other case by the district attorney, proceed to hold a Court of Special Sessions and try and determine such action upon the information taken by the magistrate and the plea of the defendant taken thereto by such Court of Special Sessions and shall exercise with regard thereto all the powers and jurisdiction of the Court of Special Sessions provided for in articles two and three hereof and may from time to time adjourn such trial. In any case where the magistrate holds a Court of Special Sessions the action shall be tried and finally disposed of by him, or if the department in charge of the prosecution or the district attorney, as the case may be, and the defendant consent, may be tried by a Court of Special Sessions to be held by the next magistrate sitting in the same magistrate’s district court or be remitted with the papers to. the Court of Special Sessions provided for in articles two and three hereof for trial there by three justices. At any stage of the proceeding before judgment the magistrate may allow the information to be amended in such manner as an indictment might be amended or may take an amended information of the complainant and continue the trial thereon, or he may suspend the trial and cause the complaint and other papers to be sent to the district attorney for trial, upon information, by three justices in the Court of Special Sessions, provided for in articles two and three hereof. If the defendant shall not give such consent, or if the department in charge of the prosecution or the district attorney as the ease may be shall object as aforesaid at any time before the actual trial by the magistrate in such Court of Special Sessions*385 the city magistrate shall proceed to examine such case as a magistrate and may, if the evidence warrants, hold such defendant to answer for trial before three justices at the Court of Special Sessions, provided for in articles two and three hereof.”
The section is somewhat involved but it is not difficult to find the legislative intent, so far as is necessary to the decision of this appeal. The section provides that when a defendant is arraigned before a magistrate for an offense which may be tried by the magistrate sitting as a Court of Special Sessions, the magistrate “ after talcing the information and depositions and the statement of the defendant in relation thereto, or his waiver, may, with the consent of the defendant, after informing him of his right to be tried by three justices at the Court of Special Sessions * * *, unless objection is made in behalf of the department in charge of the prosecution for a violation of a code, rule or order of such department, or in any other case by the district attorney, proceed to hold a Court of Special Sessions and try and determine such action upon the information * * *, and the plea * * * thereto.” The section then provides that in any case where the magistrate holds a Court of Special Sessions he shall try and finally dispose of the action, but if the prosecution and the defendant consent, the trial may be by a Court of Special Sessions to be held by the next magistrate sitting in the same district, or that if the prosecution and the defendant consent, the action and papers may, be remitted to the Court of Special Sessions provided for in articles 2 and 3 of the Inferior Criminal Courts Act “ for trial there by three justices.” It is next provided that “ at any stage of the proceeding before judgment the magistrate may allow the information to be amended * * * as an indictment might be amended or may take an amended information of the complainant and continue the trial thereon, or he may suspend the trial and cause the complaint and other papers to be sent to the district attorney for trial, upon information, by three justices in the Court of Special Sessions, provided for in articles two and three hereof.” The section then provides in the last sentence for an examination by the magistrate for the purpose of determining whether the defendant should be held to answer in
It follows that the judgment of conviction should be reversed and the defendant discharged.
Clarke, P. J., Smith, Page and Philbin, JJ., concur.
Judgment reversed and defendant discharged. Settle order on notice.