175 A.D. 88 | N.Y. App. Div. | 1916
The amended complaint alleges that on or about January 1, 1916, one Giles A. Chase, who - was a duly elected, qualified and acting justice of the peace of the county of St. Lawrence,
Section 1370 of the Penal Law, with the violation of which Wilcovitz was charged, simply defines a lottery as “ A scheme for the distribution of property by chance,” etc. Section 1373 and following sections provide that a person engaging in a lottery is guilty of a misdemeanor. While the form of the undertaking executed by the sureties is not precisely that prescribed by section 738 of the Code of Criminal Procedure to be
As the justice at Special Term pointed out, the justice of the peace had the power to hold the accused to bail upon determining there was caiise to believe that the accused had committed a criminal offense, and such determination cannot be questioned in an action on the undertaking given to secure the relase of the accused. Further, the accused was held not only to answer the particular charge, but also any other charge of crime, and that he ‘‘ should at all times render himself amenable to the orders and process of the court,” and until he appeared and was discharged or served under the judgment of the court, his sureties would not be released. The accused failed to appear after having been released on bail, and after having demanded a trial by jury, which had been drawn in accordance with his request. The legal inference is that the accused was lawfully in custody. Plainly, the sureties knew that the cause of the imprisonment was a violation of the law against lotteries. That crime is sufficiently indicated for all practical purposes by the reference to section 1370 of the Penal Law which defines a lottery, for by the organic law of the land a lottery is illegal. (State Const. art 1, § 9.) There are not in this State two kinds of lotteries, a legal and an illegal lottery. The Penal Law only attempts under the mandate of the Constitution to make certain just what a lottery is and to define the manner in which it shall be punishable. Through the means of the undertaking the sureties obtained Wilcovitz’s release from custody. Every reasonable intendment should be taken in favor of the sufficiency of the information and against the sureties.
Under section 684, before referred to, we must disregard technical errors and defects in respect of any pleadings or proceedings, unless the same have actually prejudiced the defendant or
It was said in People v. Gillman (125 N. Y. 372) that even the omission to fill in the blank in the recital intended for the specification of the nature of the crime is not one prejudicing the defendant in respect of a substantial right so as to render the undertaking invalid. By coming into the proceedings the sureties will be presumed to know upon what charge the prisoner was held. As was said in Pernetti v. People (99 App. Div. 391; affd. without opinion, 181 N. Y. 556): “In legal effect, the surety signing such a bond is substituted for the jailor, and it is his duty, when ordered and directed by the court, to produce the prisoner; and it would be giving a narrow construction to the obligation imposed by the bond to hold that the recital of the charge upon which the prisoner is held is conclusive upon the question of the responsibility of the surety for the production of the prisoner. ”
Had the proper bond been given it would be properly prosecuted in the name of the county. Whether or not the information charged a crime might have been raised by Wilcovitz, but I think it cannot be raised by the sureties in an action upon the undertaking by which the sureties obtained the release of the prisoner from custody. The mistake in the form of the
I favor affirmance of the order of the Special Term.
All concurred, except Woodward and Cochrane, JJ., who dissented.
Order affirmed, with ten dollars costs and disbursements.