People v. McPherson — 11 N.Y. Crim. 6

Majority

p. 6

Supreme Court—General Term—Third Department.

December 6, 1893.

PEOPLE v. JAMES McPHERSON.

(55 St. Rep. 688; 74 Hun, 336.)

Headnote

Criminal law—Trial. A criminal case cannot be partly tried before one magistrate and partly before another.

Appeal from judgment of the court of sessions of Rensselaer county, affirming a judgment of the assistant police magistrate of the city of Troy, convicting the defendant of the crime of petit larceny.

King & Speck (Henry A. King, of counsel), for appellant.

John P. Kelly, district attorney (Thomas S. Fagan, of counsel), for respondent.

This is an appeal by the defendant from a judgment of the court of sessions of Rensselaer county, affirming a judgment rendered by Cornelius Hannan, an assistant police magistrate of the city of Troy, Rensselaer county, con-' victing the defendant of the crime of petit larceny and imposing a. fine of twenty-five dollars. The defendant was arrested upon a warrant issued by William Donohue, á police magistrate of the city of Troy. The prisoner was arraigned and demanded d trial by jury on the 9th day of February, 1893. The trial was' •commenced before the said William Donohue, as police magistrate, and five jurors were drawn, and the defendant by his

p. 7

counsel then and there agreed in open court that the case might be tried with five jurors so drawn.

The ease was thereupon opened upon the part of the People, and at the conclusion of such opening the counsel for the defendant moved for the discharge of the prisoner upon the ground that the facts stated in the opening of counsel for the People would not warrant a conviction of the defendant for the crime charged; this motion was denied, whereupon the court was adjourned until the next day, February 10th.

' February 10th Assistant Police Magistrate Hannan presided, and at that time, amongst other things, the defendant stated by counsel that they waived the right of trial by jury on the ground that there were not a sufficient number of jurors drawn to try defendant, and then and there announced by his counsel that they had no right to make a stipulation in a criminal action for the defendant or on his behalf.

The waiver of the trial by jury for the defendant was denied and the trial proceeded before Justice Hannan and the jury of five theretofore drawn, and resulted in the conviction of the defendant. A number of questions are raised upon this appeal by the defendant, both upon the evidence, the rulings of the court, and upon the absence of any information upon which the warrant was alleged to have been issued. I do not tbinlr it is necessary to discuss any of them.

■ The trial of the case was commenced before one justice and concluded before another.

The selection of the jury, the opening of the case upon the part of the People, and the motion to dismiss made on behalf of the defendant at the conclusion of such opening, were very important parts of the trial, just as much as any of the subsequent proceedings. It seems to me too clear to need argument, or citation of authority to sustain the proposition, that a criminal case cannot be partly tried before one magistrate, and partly before another. When the trial of a case is once commenced, it must proceed to the end before the same court and jury.

Judgment of conviction should be reversed and the defendant discharged. Let an order be entered accordingly.

MAYHAM, P. J., and PUTNAM, J., concur.