144 N.Y.S. 203 | N.Y. App. Div. | 1913
The defendant appeals from a judgment of the Court of Special Sessions of the City of New York, borough of Brooklyn, that convicts him of assault in the third degree. He was charged before a magistrate in the said borough and city with felonious assault. At the close of his examination the magistrate disposed of the case as follows: “ It appearing to me by the within depositions and statement, that the crime therein mentioned has been committed, and that there is sufficient cause to believe the within-named Dominick Pascowitch guilty thereof, I order that he be held to answer the same. And that he be committed to the Sheriff of the county of Kings. And that he be admitted to bail in the sum of $1,000 and be committed to the Sheriff of the county of Kings until he give such bail.” The case was considered thereafter by the grand jury of the county of Kings, with this disposition, as appears by indorsement upon the papers subscribed by its foreman: “Reduced to Assault 3rd by G-rand Jury and sent to Special Sessions 3/6/13.” Thereafter the district attorney of the said county filed an information in the said court pursuant to section 742 of the Code of Criminal Procedure, and the defendant was tried upon his plea of “not guilty.”
The sole point that requires consideration was raised by the learned counsel for the defendant at the outset of the trial upon a motion to dismiss the information and for a discharge of the defendant, renewed at the close of the case for the People, and upon motion for arrest of judgment. The conten
I cannot find specific authority for this action of thé grand jury. The contention of the defendant is that, because the examining magistrate held him for an assault of a degree which is triable by indictment, and, therefore, made return to the grand jury, the defendant cannot in course be proceeded against for the assault as of a degree not triable by indictment but by the Court of Special Sessions upon an information. This contention involves the proposition that, although the committing magistrate determine that a crime has been committed, and there is sufficient cause to believe the defendant guilty thereof, and thereupon hold the defendant to answer, and yet err in his determination of the degree of that crime, that is an end of the present prosecution. I am inclined to opinion that the contention is not sound. The purpose of the examination was fulfilled, the protection thereof was afforded, and the error .in mistaking the degree of the crime is not prejudicial to the defendant. (State v. Spaulding, 24 Kans. 4; Ex parte Nicholas, 91 Cal. 643; State v. Myers, 8 Wash. 180.) The return should have been made to the district attorney by the magistrate (Code Crim. Proc. § 221); it came to him, practically from the magistrate, through the channel of the grand jury, although it is true that the magistrate did not intend that it should reach his hands. The failure of the grand jury to indict is not a bar to the present prosecution. (People ex rel. Burns v. Flaherty, 119 App. Div. 462. See, too, People v. Spier, 120 App. Div. 786.)
The chief reliance of the defendant is upon People v. Dillon (197 N. Y. 254), but Dillon had been discharged by the magistrate, and for that reason the proceedings came to an end,
I advise affirmance of the judgment.
Burr, Thomas, Carr and Putnam, JJ., concurred.
Judgment of conviction of the Court of Special Sessions affirmed.
