18 N.Y. Crim. 499 | New York Court of Special Session | 1904
It is charged that the defendant on the 2ist day of July, .1904, at premises No. 1926 Third avenue, in the county of New York, “did unlawfully and willfully sell or give away one package of cigars known as ‘Jack Rose Little Cigars’ to one Edward Gluck, a male • child actually and apparently under the age of sixteen years, to wit, of the age of eleven years, in violation of section 290-of the Penal Code of the-State of New York.”
The defendant interposes a demurrer because of the dis
If the information in this case were to be considered a pleading in the same sense that an indictment is a pleading, the demurrer herein would of necessity have to be allowed, and the defendant’s prayer for discharge granted. Is it such a pleading? In the opinion of this court it is not. As matter of fact the affidavit containing the disjunctive averments, and to which the defendant demurs, constitutes but a part of the case on which this defendant was held for trial. There may be a question even if it has any proper place in the case, unless it may be considered as one of the depositions taken before the magistrate who held the defendant on his examination. That it is hardly such a deposition is evidenced by its form.
The Code of Criminal Procedure provides a particular practice by a magistrate in holding a defendant charged with misdemeanor for trial in this Court of Special Sessions. If the defendant has been arrested on a warrant an information must have been laid before a magistrate charging him with some designated crime (§ 145); the magistrate must have examined the informant and prosecutor and any witnesses he may have produced, taking their depositions in writing (§ 148); the depositions being sufficient (§ 149), and the magistrate being satisfied of the commission of the crime and the guilt of the defendant, he must issue his warrant (§ 150) with the arrest and arraignment of the defendant the examination of the case by the magistrate proceeds in conformity with chapter 7 of part IV, taking and authenticating testimony given by a witness as provided therein, and also taking and reducing to writing and authenticting the statement of the defendant, if he shall make one. By the provisions of section 221 of the chapter cited, and by special statute, the magistrate is required to return to this court
It will be noted that section 221 does not require the magistrate to return the original information laid before him. It will be further noted that the provisions of chapter 7, cited, do not require, where an arrest is made without a warrant, as in this case, that there shall be any formal written information; in fact, nothing in the Code requires that the information laid before a magistrate that a crime has been committed, and that the person named is guilty of that crime, shall be in writing. That the information need not be in writing is the undoubted reason that there exists no requirement for its return,
The affidavit in this case, containing the disjunctive averments, which the defendant treats as a pleading, and to which he demurs, bears on its face the evidence of being an attempt to lay an information against the defendant, already arrested, charged with a specific crime. It need not have been drafted at all, and there was no necessity under the law for the magistrate to return it to this court. All that the magistrate need have done was to have followed the provisions of section 188 et seq., of chapter 7, cited, and if satisfied that a crime had been committed, and that there was sufficient cause to believe the defendant guilty of the crime, to hold him for trial in this court, and to make return of the depositions, the statement of the defendant, undertakings, etc., as provided by section 221. „
It will be seen, therefore, that there is not necessarily such a thing as a formal pleading in the nature of an indictment in cases held for trial in this court by the city magistrates. That which takes the place of the indictment in the
It may be said in this case, which is the fact, that no depositions have been returned to us, other than the affidavit which has already been referred to, and that we must determine from that affidavit alone that the defendant is not charged with a specific crime, and, therefore, should
If the rule contended for by this defendant were upheld there would be a failure of justice in the matter of nearly every case of misdemeanor where a defendant was held to answer in this county.
It cannot be that our lawmakers contemplated such a result. They intended that criminals should be brought to justice; nor did they intend that any of the rights of criminals as individuals should be infringed; nor are they infringed with the practice as it exists.
Let us consider the position of this defendant and see if he has been or is to be prejudiced in any way by á requirement to plead to the charge for which he was held by the magistrate. He was arrested by a peace officer; he was taken before a city magistrate, and there informed of the
It might be contended that this court cannot take jurisdiction on a return of this character by a magistrate. Where is the merit in that contention when the magistrate has returned even more than he is required to return by law? The defendant can only be tried on the charge for which the magistrate held him. If any crime was committed that will be determined on the trial; it cannot be determined on this demurrer.
This case is distinguished from the case of People v. Pillion, 78 Hun, 74, and People v. Miller, 81 App. Div. 255, because the practice in this court is peculiar to the city and county of New York and differs radically from that in the courts wherein these cases were tried.
In the Miller case it was decided that the Recorder’s Court, city of Elmira, had no jurisdiction to try the defendant on a defective complaint. The decision in the Pillion case was practically to like effect concerning the police court in the city of Albany. Both courts were Courts of Special Sessions for the trial of these particular cases, but the prac
In the Court of Special Sessions in the city of New York the defendant is called upon to plead to a criminal charge-which has been the subject of judicial inquiry by a competent magistrate after a thorough examination into all the facts, which have satisfied that magistrate that there is sufficient cause to hold him for trial, all his rights being conserved under the law. If he is convinced that any of his rights-have been infringed by the action of the magistrate he has his remedy byowrit. Not having availed himself of that remedy the defendant herein seeks to apply the technical rules of pleading applicable to indictments in his case in this court, notwithstanding that all that is required by statute has been done by the magistrate in the return of this case to give this court jurisdiction.
Briefly, then, the situation as to the so-called pleading in this court is this: It consists simply of the return of the magistrate; that return, under the provisions of the law, may consist (no deposition having been taken—Code Crim. Pro., § 204— and no docket having been kept by the magis
I am of the firm belief that the remedy by demurrer does not lie, and the demurrer herein is disallowed.
Hinsdale and Wyatt, J J., concur.
Demurrer disallowed.