Majority
p. 355Duffy vs. The People.
Headnote
The constitution of this state, (Art. 1th, § 2,) relating to the right of trial by jury, &e. has no reference to proceedings intended merely to prevent the commission of offences.A statute authorizing a magistrate, summarily and without jury, to convict one who has abandoned his family, of being a disorderly person, and to require from him sureties for good behaviour, is not unconstitutional.
Error from the New-York common pleas. The suit in the court below was against. Duffy, on a recognizance taken before a justice of the peace, conditioned for the good behaviour of one Dayly, towards the people, &c. for one year, The recognizance recited, that Dayly had been convicted of being a disorderly person, viz. one who had neglected to provide for his wife, &c. It was taken May 18th, 1838. Duffy pleaded, among other things, that Dayly’s conviction was by the justice alone, without a jury, contrary to the 7th Art. of the constitution of this state. Demurrer to this plea, and joinder. Judgment was rendered for the people in the court, below; whereupon Duffy sued out a writ,of error.
C. O'Connor, for plaintiff in error.
A. L. Robertson, contra.
The constitution, in its language concerning trial by jury, and courts proceeding according to the course of the common law, (Art. 7, § 2,) evidently has reference to cases wherein an issue is joined, which may be followed by verdict' and judgment; not to that class of cases wherein the law. has interposed means of preventive justice. The statute of 1833, (ch. 11, § 7,) merely adds one to the class of disorderly persons, and authorizes a single magistrate to deal with him in a summary way, as all others of this class have long been dealt with; not to punish him for a crime committed, but require him
p. 356
tó give security that he will not commit a crime. This and the like, are not cases in which the trial by jury has ever been used.
Judgment affirmed.[1]
(a) (a) See Matter of Newell Smith, ( 10 Wend. 449 .)