44 N.Y.S. 146 | N.Y. App. Div. | 1897
. This action was brought against the defendant for false imprisonment. The .defendant was a justice of the peace of the towil of North Hempstead, in the county of Queens. The complaint alleged that one Rugge made a complaint on oath before the defendant, as justice of the peace, charging the plaintiff with the crime of disturbing a religious meeting; that the plaintiff'was arrested on .such charge and brought before the defendant; that the defendant, without the consent of the plaintiff, as a Court of Special Sessions, proceeded to try the plaintiff on said charge, convicted him and sentenced him to pay a fine of twenty-five dollars, or, in default, to stand committed not exceeding twenty-five days; that on appeal to the Court of Sessions of Queens county the judgment of conviction was reversed ; that the plaintiff was detained in custody during said trial and was compelled to employ counsel to obtain his discharge. , Plaintiff asserts that the defendant was without jurisdiction to try the charge. The complaint was dismissed on the pleadings, and from the judgment entered on such dismissal this appeal is taken.
No complaint is made because the defendant assumed to act as a Court of Special Sessions instead of as a justice of the peace, nor is there any claim made that the plaintiff was denied a trial by jury. The contention of the plaintiff is that the offense with which he was charged is made, by sections 274 and 275 of the Penal Code, a misdemeanor; that it is not one of those misdemeanors which, by section 56, Code of Criminal Procedure;, a Court of Special Sessions was authorized to try, and hence that the magistrate was wholly without jurisdiction to convict or punish him for the offense: . The correctness of this claim depends on the determination of the question, whether, the provisions of sections, 65 to 68, article YI'I, and the provisions of article IX, title 8, chapter 20, part I, Revised Statutes, were in force at the time' of the arrest and trial of the plaintiff. These provisions gave ample authority to the defendant,
The principal contention of the plaintiff is that the enactment of the. Code of Criminal Procedure and Penal Code covered the whole subject of criminal offenses and criminal prosecutions, and hence, operated to repeal these provisions of the Revised Statutes, as inconsistent with such Codes. By section 4 of the Code of Criminal Procedure all crimes must be prosecuted by indictment, except where proceedings are had for removal of certain officers and crimes arising in the militia or in the land or naval forces, and “ 4. Such crimes as are hereinafter or in special statutes specified as cognizable by Courts of Special Sessions and Police Courts.” By section 274 of the Penal Code, a person who willfully disturbs an assemblage met for religious worship is guilty of a misdemeanor. The proceedings against violators of the Sabbath law and disturbers of religious meetings, authorized by the Revised Statutes to be prosecuted before magistrates, were not cognizable by Courts of Special- Sessions nor by Police Courts, either by the Code of Criminal Procedure or by other statutes. It is, therefore, insisted that such offenses could only be prosecuted by indictment.
It is undoubtedly true that the term “ crime ” is, within many definitions to be found in dictionaries and in text writers, broad enough to include the offense with which the plaintiff was charged. Mr. Bishop, in his work on Statutory'Crimes, devotes many sections to the discussion of the violation of the ordinances and by-laws of municipal corporations, treating such violations as crimes. But whatever be the correct and accurate definition of the word “ crime,” I think that it is not used in the Code of Criminal Procedure in a sense broad enough, to include petty offenses subject to summary convictions by a magistrate. In the Code crimes are divided into felonies and misdemeanors, and no provision is found for the trial of either before a magistrate, as such. Yet the Code at length prescribes the forms and methods of procedure in cases of bastardy, in proceedings
An explanation of the whole-subject will be found in the origr inal note of the codifiers to section 39 (present section 260), Penal Code. It there appeal’s that it was not intended to abrogate all the summary proceedings which have been discussed. On the contrary, it appears that-these-proceedings, so fat as the, Sunday laws are concerned, were intended to be provided for by sections 849 to 853 of the Political Cbde. The codifiers recommended, however, that the definition and punishment of Sabbath breaking should be treated in the Penal Code, while the provisions of the Revised Statutes should be either allowed to stand in the Political Code or be incorporated in the Criminal Code. The Political Code never having been adopted,
The state of the law concerning the .offense of disturbing a. religious meeting varies slightly from that concerning Sabbath breaking, but not sufficiently to affect the conclusion reached. Disturbing a religious meeting was a misdemeanor at common law, and. could be prosecuted by indictment, notwithstanding the provisions, of the Revised Statutes for its summary punishment, which were: held to be only cumulative (People v. Crowley, 23 Hun, 412 ; People v. Degey, 2 Wheel. Cr. Cas. 135), though a punishment in one: proceeding would have precluded a punishment in the other. When, therefore, the Penal Code (§ 274) defined the offense as a. misdemeanor, and left its punishment open to the provisions concerning misdemeanors in general, it did not show any intent to abrogate the provisions of the Revised Statutes on the subject. It. did, doubtless, modify and repeal the common law on the subject,, except so far as saved in the terms of the definition, but there is no-greater inconsistency in the offense being subject to summary prosecution before a magistrate and by indictment under the Penal Code: than there was in the previous condition of the law.
By chapter 593, Laws of 1886, the Legislature repealed section 64-of the article above recited, which defined the offense of disturbing-religious meetings. This act, which seems to be a general repealing ■ law of all previous legislation deemed inconsistent with or rendered unnecessary by the enactment of -the Penal Code and Code of " Criminal Procedure, did not repeal the subsequent sections of that, article, or those of the following one, which prescribed the proceedings against persons committing this .offense. I concede that had the section repealed been the only provision making the disturbance-of religions meetings an offense, the mere fact that there were continued in force the machinery for prosecuting such offense and the.
We are, therefore, of the opinion that the defendant, as justice of the peace,, had power to try the charge on which the plaintiff was brought before him, and it becomes unnecessary to determine whether, in case he was without jurisdiction over the offense, his error was* so far judicial as to give him immunity from suit, under the doctrine of Austin v. Vrooman (128 N. Y. 229).
The judgment appealed from should be affirmed, with costs.
All concurred, except Bartlett, J., not sitting.
Judgment unanimously affirmed, with costs.