People v. Carter — 11 N.Y. Crim. 25

Majority

p. 25

Supreme Court—General Term—Fourth Department.

July 5, 1895.

PEOPLE v. WILLIAM B. CARTER.

(68 St. Rep. 584; 88 Hun, 304.)

Headnote

Information—Waiver.

Where a defendant is brought before a magistrate for intoxication -in a public place and without any other action on his part pleads guilty to the oral charge, the requirements of section 699 of' the Code of Criminal Procedure are waived, and his conviction will not be reversed because the charge was not reduced to writing.

Appeal from a judgment of the court of sessions, .affirming a judgment of the police court of the city of Syracuse.

M. F. Sherlock, for appellant.

B. J. Shove, for People.

The charter of the city of Syracuse (Laws 1885, chapter 26) authorizes a police justice of that city to hold courts of special sessions for the trial of all offenses triable in a court of special sessions, and confers upon such court the powers and jurisdiction conferred upon courts of special sessions by title 6, chapter 1, section 56, Code Criminal Procedure. He is also given power and jurisdiction to try all offenses of the grade of misdemeanor under the laws of the state of Hew York. Section 35 of chapter 401 of the Laws of 1892 provides: “Any person who shall be intoxicated in a public place shall be guilty

p. 26

of disorderly conduct, may be arrested without warrant while so intoxicated, and shall be punished by a fine of not less than three nor more than ten dollars or by imprisonment not exceeding six months.” This offense was a misdemeanor. Penal Code, § 6. Thus it is obvious that the trial court had jurisdiction to try the offense of which the defendant was charged.

From the papers and return in this case it is manifest that the defendant was arrested for being intoxicated in a public place in the city of Syracuse. He was arraigned before one of the police justices of that city, and charged with that offense. He pleaded guilty, and it was thereupon adjudged that he should be imprisoned in the Onondaga county penitentiary for the term of thirty days. It seems to us quite clear that when the defendant was arraigned, which presumably involved a statement of the charge made against him, and he pleaded guilty, the court had the right to convict him of that offense. The only ground upon which the appellant claims the judgment herein should be reversed is that the charge to which the defendant pleaded guilty was not sufficient to sustain the court in convicting him of the crime, because it was not in writing and verified, and the officer malting the arrest was not sworn in reference to the offense. As sustaining that proposition, he cites People v. Beatty, 39 Hun, 476 . In that case the defendant was convicted of disturbing certain oyster beds. Upon the hearing of an apepal from a judgment of the court of sessions affirming a judgment of the court of special sessions it was for the first time objected that in the charge before the ¡court of special sessions the prefix “un” had been omitted, malting the charge allege that the defendant “lawfully” did the acts set forth. The court in that case said that, if the question had been raised by the affidavit required by section 751 of the Code of Criminal Procedure, it might have been sustained; but, as it was not so specified, it could not be considered. ¡We find in that case no authority for the contention of the appellant. While the Code of Criminal Procedure (section 699) provides that, where such courts have jurisdiction, when the defendant is brought before the magistrate, the charge must be distinctly read to Mm, and he must be required to plead thereto,

p. 27

■still we are of the opinion that am omission to reduce the charge to writing does not deprive the magistrate of jurisdiction, and that where, as in this case, a defendant is brought before a magistrate, and without any other action upon his part pleads guilty to the oral charge, the requirements of section €99 are waived, and his conviction should not be reversed because the charge was not reduced to writing. The filing of an information in writing was not required, as the statute expressly gives authority to arrest any person, intoxicated in a public place, without a warrant. A magistrate acquires jurisdiction of a person when the person is placed in custody, charged with crime. People ex rel. Gunn v. Webster, 75 Hun, 278 ; 58 St. Rep. 225 . If, as we have already suggested, this omission was not jurisdictional, but a mere irregularity, it could foe waived by the defendant. Pierson v. People; 79 N. Y., 424 , 429. In People v. Rathbun, 21 Wend. 509 , 542, Cowen, J., said: “He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.” See, also, People v. McIntosh, 43 Hun, 55 ; 6 St. Rep. 541 . If, therefore, under the circumstances of this case, and under the statute creating the offense of which the defendant wias convicted, any written charge was necessary, we think its omission was at most an irregularity, which was waived by the defendant when he pleaded guilty; and that the judgment of the court of sessions affirming the judgment of conviction by the court of special sessions should be affirmed.

Judgment of the court of sessions of Onondaga county, affirming the judgment of conviction and sentence of the court of special sessions, affirmed.

All concur.

Cases cited

People v. Rathbun 21 Wend. 509 N.Y. Sup. Ct. at 542 p. 27