People v. McCarthy

• Decision Date: 26 November 1901
• Parties: PEOPLE v. McCARTHY.
• Court: New York Court of Appeals Court of Appeals

168 N.Y. 549

61 N.E. 899

PEOPLE

v.McCARTHY.

Court of Appeals of New York.

Nov. 26, 1901.

Appeal from supreme court, appellate division, Second department.

Patrick McCarthy was convicted of keeping a disorderly house, and from an order of the appellate division (69 N. Y. Supp. 513) affirming the judgment of conviction he appeals. Affirmed.

An indictment herein was found in the supreme court and transferred to the Queens county court. The defendant was arraigned thereon, and pleaded not guilty. A trial was had in the county court, and a verdict of guilty was rendered. When the defendant was arraigned for sentence, he moved for a new trial and in arrest of judgment upon the ground, among others, that the county court had no authority or jurisdiction to inquire into the charge against him by indictment before a charge or complaint was made to a city magistrate. The facts relied upon were presented by affidavit, which was read on the motion. The motion was denied, and the defendant excepted. Thereupon he was sentenced to imprisonment in the Kings county penitentiary for the term of one year.

Charles Haldane and Abraham Levy, for appellant.

John B. Merrill, Dist. Atty. (George A. Gregg, of counsel), for the People.

MARTIN, J.

The single question presented upon this appeal is whether the grand jury had jurisdiction to prefer the indictment herein, or whether its jurisdiction was dependent upon a complaint having been previously made to a magistrate or to a court of special sessions. The defendant contends that, although the court in which the indictment was found was a court of general jurisdiction, it had no authority to inquire into the offense alleged, and present an indictment therefor, because there was no charge or complaint pending before the court of special sessions. This claim is based upon the provisions of section 1406 of the charter of the city of New York, which defines the jurisdiction of courts of special sessions. Laws 1897, c. 378. That section, so far as it relates to this question, provides: ‘The said courts of special sessions shall have jurisdiction as follows: (1) Except as otherwise provided in this title, the said courts of special sessions of the city of New York shall have in the first instance exclusive jurisdiction to hear and determine all charges of misdemeanors committed within the city of New York, except charges of libel. * * * The said courts shall, however, be divested of jurisdiction to proceed with the hearing and determination of any charge of misdemeanor in either of the following cases: First: If, before the commencement of the trial in said court of any person accused of a misdemeanor, a grand jury shall present an indictment against the same person for the same offense; or second: if, before the commencement of any such trial,’ one of the judicial officers mentioned therein shall certify that it is reasonable that such charge shall be prosecuted by indictment. The last subdivision then provides the procedure for obtaining such certificate, and that the proceedings shall be stayed and the charge presented to a grand jury. The material portions of that section disclose that criminal prosecutions for misdemeanors are, in the first instance, within the exclusive jurisdiction of courts of special sessions, except as otherwise provided in title 3 of chapter 378, subc. 20. Obviously, under that statute, the general rule is that courts of special sessions in the first instance have exclusive jurisdiction of all misdemeanors, except libel, committed in the city of New York. But to that general rule as to jurisdiction there are certain statutory reservations or exceptions, one of which is that that court shall be devested of its jurisdiction to hear and determine charges of misdemeanors if at any time before trial a grand jury shall present an indictment for the same offense. The only express limitation to the right of a grand jury to present an indictment in any such case is that it must be presented before the commencement of the trial. Therefore, unless some other prohibition is to be implied from the statute, it is evident that the grand jury had authority to find and present the indictment in this case, and when found its effect was to devest the court of special sessions of any jurisdiction to try the defendant for the offense charged.

The defendant, however, contends that in construing the provision of the statute devesting courts of sessions of jurisdiction when an indictment has been found we should also consider the other excepion where one of the judicial officers mentioned certifies that it is reasonable that the charge should be prosecuted by indictment. Upon that premise it is then argued that as, in the latter case, the proceedings are stayed, they must also be stayed where an indictment has been found; and, as there is a stay of proceedings, the conclusion follows that both of these...