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People v. Stahl

160 N.Y.S. 726 Court N.Y. Ct. Spec. Sess. Decision date 1915-04-02 English

Delivered by FRESCHI, J.

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p. 726
PEOPLE v. STAHL.
(Court of Special Sessions, New York County.
April 2, 1915.)

Headnote

Indictment and Information <@=>144—Demurrer—Deposition Before Magistrate.
Where a deposition before a magistrate has been superseded by the district attorney’s information, the sufficiency of the deposition cannot be challenged by demurrer before the Court of Special Sessions; but, if the jurisdiction of the committing magistrate is questioned, the defendant must move to dismiss the information because of the insufficiency of the evidence, whereby the magistrate had no jurisdiction to hold him for trial.
(Ed. Note.-—For other cases, see Indictment and Information, Cent. Dig. § 488; Dec. Dig. <@=>144.]
(§E3>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Frank J. Stahl was charged with a violation of the Public Health Law, prohibiting the unlawful practice of medicine. Demurrer to information overruled.
Argued before KERNOCHAN, P. J., and McINERNEY and FRESCHI, JJ.
The Assistant District Attorney, for complainant.
Henry C. Neuwirth, of New York City, for defendant.

The information filed on March 17, 1915, by the

district attorney makes out a crime, and properly alleges the commission of such acts as constitute a violation of Public Health Law (Con-sol. Laws, c. 45) § 153, which prohibits the unlawful practice of medicine.

The defendant has in no wise pointed out wherein the information so filed is to be deemed insufficient; but his argument seems to bean attack upon the deposition before the magistrate. This deposition has been superseded by the district attorney’s information. The sufficiency of a deposition before a magistrate cannot be challenged by a demurrer before this court. That is not the proper procedure. If the jurisdiction of the committing magistrate is questioned, then the defendant must follow the practice laid down in the case of People v. Shenk, 142 N. Y. Supp. 1081 , which is to move to dismiss the information because of the insufficiency of evidence, and that therefore the magistrate had no jurisdiction to hold the defendant for trial. See, also, People ex rel. Phillips v. Hanley, 164 App. Div. 150 , 149 N. Y. Supp. 452 . Even the regularity of this practice has been questioned.

The demurrer is accordingly overruled. All concur.

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