22 N.Y.S. 688 | New York Court of Sessions, Ulster County | 1893
The defendant, who is a resident of the city of Kingston, was arrested upon a warrant issued by the recorder of that city, charging him. with keeping a disorderly house. He waived an examination, and gave bail to await the action of the grand jury. At the next court of sessions, he was indicted for the keeping of a disorderly house, and now demurs to the indictment
Waiving the discussion of the constitutionality of this amendment, it hardly seems to me controlling in the case at bar. Prior to the enactment of the Penal Code the keeping of a disorderly house was a, misdemeanor at common law. The Penal Code made it a statutory offense. Pen. Code, § 322. By the provisions of the Code, no act-after it took effect as a law (December 1, 1882) is deemed criminal or punishable except as prescribed or authorized by it, or by some statute not repealed by it.' Id. § 2. The defendant’s claim that the Penal Code, being a general act, did not repeal, or modify the local law applicable to the city of Kingston, passed before its enactment, and that the amendment to the charter (chapter 33 of the Laws of 1888) was a legislative recognition, so far as the city is concerned, that the general law was modified by the special or local statute, is untenable; it being, expressly provided by the Code itself that none of its provisions shall be deemed repealed, altered, or amended by the passage of any subsequent act, inconsistent therewith, unless such statute shall explicitly refer to, and directly repeal, alter", or amend, that Code. Pen. Code, § 728
We think that this indictment is neither multifarious, nor bad for duplicity; that the court has jurisdicton of the crime charged; and that the demurrer is not well taken, and should be overruled, with leave to the defendant to plead over.
Section 728 was added to the Penal Code by Laws 1886, o. 31, § 8.