Opinion
November 8, 1912.
K. Henry Rosenberg, for the appellant.
Robert C. Taylor, for the respondent.
It is conceded by the learned assistant district attorney that errors were committed on the trial of this case, which require a reversal; but in the view we take of the case we do not deem it necessary to examine the alleged errors with respect to the reception of evidence. Counsel for the defendant insisted on the trial that his client had been formerly put in jeopardy on this same charge and he pleaded a former acquittal in bar, and on proof of the facts set forth in the statement of facts he contended that by virtue of the provisions of section 6 of article 1 of the Constitution, he was entitled to have the information dismissed. That plea was overruled, but at the close of the evidence and after conviction he moved on the same facts in arrest of judgment. Counsel for the respective parties join in requesting that this court decide the questions arising on these contentions, for if either of them be well founded the defendant should be discharged.
It appears by the statement of facts that the defendant, having been arrested without a warrant, was duly charged by the officer who made the arrest, before a magistrate having jurisdiction to try the offense, with disorderly conduct, which was a violation of the provisions of section 1458 of the Consolidation Act (Laws of 1882, chap. 410), which provides as follows: "Every person in said city and county shall be deemed guilty of disorderly conduct that tends to a breach of the peace, who shall in any thoroughfare or public place in said city and county commit any of the following offenses, that is to say: * * *
"3. Every person who shall use any threatening, abusive or insulting behavior with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned."
He was duly arraigned on that charge, employed counsel to defend him, and entered upon the trial, and before hearing all the evidence the magistrate directed that a new complaint be made and that he be discharged. The new complaint was on the same facts, but it charged a violation of section 720 of the Penal Law under which the magistrate was without jurisdiction to try the defendant, whereas he had exclusive jurisdiction under the original charge, but on conviction thereunder he could not receive as severe a sentence. The fact that the magistrate did not intend to acquit the defendant is of no importance. Undoubtedly the object of the magistrate in directing that the officer charge the defendant with a violation of section 720 of the Penal Law was to have the case taken to the Court of Special Sessions, where a greater sentence might be imposed if he were convicted.
It is well settled that where the court directs an acquittal, no matter how erroneously, the defendant cannot be subsequently tried on the same charge. ( People ex rel. Stabile v. Warden of City Prison, 139 App. Div. 488; affd., 202 N.Y. 138; Kepner v. United States, 195 U.S. 100, 130; People v. Miner, 144 Ill. 308; People v. Barrett, 2 Caines, 304. See, also, People v. Goodwin, 18 Johns. 187.) The People were at liberty to rest on such evidence as they saw fit to offer, and the defendant was under no obligation to offer any evidence. The fact, therefore, that only one witness was sworn is of no importance. I am of opinion that it is the well-settled rule that where a person is arraigned on a criminal charge, and required to go to trial before a court of competent jurisdiction, unless the trial is terminated by the disagreement of the jury, or their discharge pursuant to law, or by the consent of the accused, or through extreme or absolute necessity, as by illness or death, he has been put in jeopardy and cannot be prosecuted again in the same or another court on the same charge; and the discontinuance of the prosecution is equivalent to a discharge, for the constitutional protection grants the defendant immunity against a second trial. ( People ex rel. Stabile v. Warden of City Prison, supra; People v. Goodwin, supra; People v. Barrett, supra; Shepherd v. People, 25 N.Y. 406; Kepner v. United States, supra.) I am of opinion that the defendant was quite as much in jeopardy before the magistrate in the case at bar as if the prosecution had continued until the close of the evidence, and there had been a motion made for his acquittal, which was granted.
It seems, however, that the defendant's plea in bar was properly overruled, for the reason that, while what occurred was in effect an acquittal, there was no formal judgment of acquittal. (Code Crim. Proc. § 332; People ex rel. Stabile v. Warden of City Prison, supra; People v. Goodwin, supra.) Doubtless the defendant would have been entitled to a discharge on a writ of habeas corpus, on being held to answer the second charge ( People ex rel. Stabile v. Warden of City Prison, supra); but this was not his only remedy, and he was at liberty after conviction to move in arrest of judgment on these facts, as he did. ( People v. Goodwin, supra; People v. Barrett, supra; People ex rel. Stabile v. Warden of City Prison, supra.)
Without, therefore, considering whether any other error was committed on the trial, I am of opinion that the defendant's motion in arrest of judgment should have been granted, and he should have been thereupon discharged from custody, and this court should now do what the trial court should have done.
The motion in arrest of judgment, therefore, is granted, and the sentence of the court is set aside, and the defendant discharged.
SCOTT, MILLER and DOWLING, JJ., concurred; INGRAHAM, P.J., dissented in part.
I do not think that there was a "former judgment of conviction or acquittal of the crime charged" in this case which entitled the defendant to his discharge upon the trial by the Court of Special Sessions. (Code Crim. Proc. § 332.)
The defendant was arrested by a police officer and brought before a magistrate, and was there charged with "disturbing the peace, and did then and there push and jostle passengers and put his hands on the person of several passengers" by the police officer who arrested him. The record before the police magistrate is very incomplete, and from the record it would be impossible to state just what disposition the magistrate made of this charge. I think the deposition of the police officer was of itself a sufficient charge of a misdemeanor under section 720 of the Penal Law. That section provides that "Any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place or with the passengers of any public stage, railroad car, ferry boat, or other public conveyance, or who shall disturb or offend the occupants of such stage, car, boat or conveyance, by any disorderly act, language or display, although such act, conduct or display may not amount to an assault or battery, shall be deemed guilty of a misdemeanor." It is true that the deposition of the police officer did not mention this section or expressly allege that the defendant was guilty of a crime under it, but it alleged facts which, if true, disclosed a violation of this section. When the defendant was brought before the police magistrate it was the duty of the magistrate to proceed to examine the case unless the defendant waived examination or elected to give bail. (Code Crim. Proc. § 190.) This the magistrate proceeded to do. There is nothing in the record to show that the magistrate proceeded against the defendant under section 1458 of the Consolidation Act (Laws of 1882, chap. 410) rather than under section 720 of the Penal Law. The police officer who made the arrest was examined by the magistrate, who directed him to make a new complaint, which expressly charged the defendant with a violation of the provisions of section 720 of the Penal Law, and in that new complaint he went more fully into the facts preceding the arrest, and upon this new complaint the defendant was held for trial at Special Sessions. There was no acquittal of a charge made under the section of the Consolidation Act, but a charge was made against the defendant which would be a violation, both of the section of the Consolidation Act and section 720 of the Penal Law. The police officer says that after the new charge was made and the defendant was committed for trial the magistrate said something about his being discharged under the first complaint, but, as I read the record, the defendant was never placed upon trial for a violation of the Consolidation Act, but was simply charged with an offense for which he might be punished under either the Consolidation Act or the Penal Law. The hearing before the magistrate, so far as appears, was the examination which any person arrested with or without a warrant is entitled to, and the direction to the police officer to prepare a new charge was simply a direction to obtain a more specific statement of the facts under section 720 of the Penal Law.
I think, therefore, there was no trial of the defendant for any offense, but an examination by the magistrate of a person arrested without a warrant for an offense which was a violation of the Penal Law. Certainly the mere direction of the magistrate to make a fuller complaint, or to prepare a new complaint setting forth the facts in more detail cannot be said to be an acquittal of the charge preferred against the defendant. I think the plea of a former acquittal is not sustained and that the court below was justified in trying the defendant.
There was error in the admission of testimony which the district attorney concedes requires a new trial.
I think, therefore, the judgment appealed from must be reversed and a new trial ordered.
Judgment reversed and defendant discharged. Order to be settled on notice.