130 N.Y.S. 202 | New York County Courts | 1911
This is an appeal from a judgment of conviction for the crime of “ hunting without a license)” rendered by Justice George King, of the town of Kirkland, upon the verdict of a jury. Several alleged errors are cited by the appellant, but in my view of 'the case it becomes necessary to consider only one which lies ut the foundation of the case. ,
Upon that information and without any substantiating proof, the warrant herein¡ was issued by Justice King. The defendant was arrested, brought before the justice, pleaded not guilty, demanded a trial by jury, and gave bail for his appearance to attend the trial on a subsequent day. At the date of the trial 'defendant appeared personally and by counsel, and his attorney filed the following: “Defendant objects to the jurisdiction of the court and asks that he be discharged on the ground that the ‘ information ’ herein does not state sufficient facts to authorize the issuance of a warrant—there was no deposition in this case- and no sufficient affidavits to authorize the issuance of a warrant.”
The objection was overruled and the case proceeded to trial, resulting as above, and a fine of forty-five dollars was imposed, which was paid, as the appellant claims, under protest.
I do not think that this conviction can stand, for the reason that it seems clear to me that the warrant was issued without due process. Section 145 of the Code of Criminal Procedure defines an information; and, while the phraseology of the information in this case is not very definite or explicit, we may, perhaps, assume that it is sufficient. Section 148 of the Criminal Code
The question is raised as to wether by pleading and demanding a jury without raising the objection the defendant may "have conferred jurisdiction upon the court to try him. In Matter of Blum, 9 Misc. Rep. 571, the court, in a case similar to this one, held that no jurisdictitin was acquired by the court where the information was based solely upon information and belief; but the court held that, by pleading and demanding trial
However, in both those cases it will be observed that the defendant actually stood trial without raising the question, whereas in the case at bar the defendant raised the jurisdictional question before the trial was actually commenced. I do not think that the doctrine of the two cases cited above should be extended to include a case like the present one, where the defendant appears without counsel and pleads and demands a jury trial. He could hardly be supposed to know whether the papers upon which the warrant for his arrest was issued were legally sufficient, and I think he ought not to be held to have waived what he did not know about. The case of People v. James, 11 App. Div. 609, is ample authority for a reversal of the conviction in this case; and it in effect holds that even submitting to trial, in a case if irregularities such as were committed before the magistrate, does not amount to a waiver of the question of jurisdiction and does not confer any jurisdiction upon the magistrate. Another case in point is People ex rel. Farley v. Crane, 94 App. Div. 397-400.
For the reasons stated, I reach the conclusion that the justice had no jurisdiction to try this defendant, and this conviction must be reversed and the fine paid by him returned.
Odrered accordingly.