138 N.Y.S. 62 | N.Y. App. Div. | 1912
Lead Opinion
Laughlin, J.:
It is conceded by the learned assistant district attorney that errors were committed on the trial of this case, which require a reversal; but in the view we take of the case we do not deem it necessary to examine the alleged errors with respect to the reception of evidence. Counsel for the defendant insisted on
It appears by the statement of facts that the defendant, having been arrested without a warrant, was duly charged by the officer who made the arrest, before a magistrate having jurisdiction to try the offense, with disorderly conduct, which was a violation of the provisions of section 1458 of the Consolidation Act (Laws of 1882, chap. 410),. which provides as follows: ‘' Every person in said city and county shall be deemed guilty of disorderly conduct that tends to a breach of the peace, who shall in any thoroughfare or public place in said city and county commit any of the following offenses, that is to say:
“ 3. Every person who shall use any threatening, abusive or insulting behavior with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.”
He was duly arraigned on that charge, employed counsel to defend him, and entered upon the trial, and before hearing all the evidence the magistrate directed that a new complaint be made and that he be discharged. The new complaint was on the same facts, but it charged a violation of section 720 of the Penal Law under which the magistrate was without jurisdiction to try the defendant, whereas he had exclusive jurisdiction under the original charge, but on conviction thereunder he could not receive as severe a sentence. The fact that the magistrate did not intend to acquit the defendant is of no importance. Undoubtedly the object of the magistrate in directing that'the officer charge the defendant with a violation of section 720 of the Penal Law was to have the case taken to the Court of Special Sessions, where a greater sentence might be imposed if he were convicted.
It seems, however, that the defendant’s plea in bar was properly overruled, for the reason that, while what occurred •was in effect an acquittal, there was no formal judgment of acquittal. (Code Grim. Proc. § 332; People ex rel. Stabile v. Warden of City Prison, supra; People v. Goodwin, supra.) Doubtless the defendant would have been. entitled to a discharge on a writ of habeas corpus, on being held to answer the second charge (People ex rel. Stabile v. Warden of City Prison, supra); but' this was not his only remedy, and he was at liberty after conviction to move in arrest of judgment on
Without, therefore, considering whether any other error was committed on the trial, I am of opinion that the defendant’s motion in arrest of judgment should have been granted, and he should have been thereupon discharged from custody, and this court should now do what the trial court should have done.
The motion in arrest of judgment, therefore, is granted, and the sentence of the court is set aside, and the defendant discharged.
Scott, Miller and Dowling, JJ., concurred; Ingraham, P. J., dissented in part.
Concurrence in Part
I do not think that there was a “former judgment of conviction or acquittal of the crime charged ” in this case which entitled the defendant to his discharge upon the trial by the Court of Special Sessions. (Code Crim. Proc. § 332.)
The defendant was arrested by a police officer and brought before a magistrate, and was there charged with “ disturbing the peace, and did then and there push and jostle passengers and put his hands on the person of several passengers ” by the police officer who arrested him. The record before the police magistrate is very incomplete, and from the record it would be impossible to state just what disposition the magistrate made of this charge. I think the deposition of the police officer was of itself a sufficient charge of a misdemeanor under section 720 of the Penal Law. That section provides that “Any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place or with the passengers of any public stage, railroad car, ferry boat, or other public conveyance, or who shall disturb or offend the occupants of such- stage, car, boat or conveyance, by any disorderly act, language or display, although such act, conduct or display may not amount to an assault or battery, shall be deemed guilty of a misdemeanor.” It is true that the deposition of the police officer did not mention this section or
I think, therefore, there was no trial of the defendant for any offense, but an examination by the magistrate of a person arrested without a warrant for an offense which, was a violation of the Penal- Law. Certainly the mere direction of the magistrate to make a fuller complaint, or to prepare a new complaint setting forth the facts in more detail cannot
There was error in the admission of testimony which the district attorney concedes requires a new trial.
I think, therefore, the judgment appealed from must be reversed and a new trial ordered.
Judgment reversed and defendant discharged. Order to be settled on notice.