People v. Hulett

—The complaint on which the warrant was issued was made under § 322 of the Penal Code which, among other

The complaint is in writing and on oath, and charges: “ That at the time and place aforesaid the said William Hulett has kept a house or place for persons to visit for obscene and indecent purposes ; that said place is and has been, for the year last past, a disorderly house and a public resort, by which the peace and comfort and decency of the neighborhood has been and is habitually disturbed; that frequent quarrels occur in said house, and men and women of bad repute frequently visit there; that said quarrels and visits are at all times of day and night.” This complaint alleges that the complainant’s information is derived from personal observation and inspection as a public officer of the city, and the charges are sustained by the affidavits of several persons accompanying the complaint.

Hor do we think that the contention of the appellant that the recorder had no jurisdiction to hear the case, sound. The offense charged is a misdemeanor. Penal Code, § 322. By § 2 of title 9 of chap. 55 of the Laws of 1890, the recorder of the city of Grloversville, within the city, is invested with the following power and jurisdiction: “ He shall have jurisdiction, power and authority in said city, to the exclusion of all magistrates, except officers of a court of record, to issue all criminal processes, to receive and hear all informations and complaints, and make examinations in criminal cases; to hold courts of special sessions, with all the powers and jurisdiction.of such courts; to hear, try and determine, in the first instance, all charges of misdemeanor, subject, however, to the power of removal provided for in §§ 57 and 58 of the Code of Criminal Procedure.”

By § 26 of art. 6 of the state constitution, it is provided that “ Courts of special sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law.”

As the recorder is given exclusive jurisdiction of the crime of misdemeanor, in the first instance, within the city of Grloversville, it must follow that within the above constitutional provisions he had jurisdiction of the offense charged in this complaint. The next objection made by the learned counsel for the appellant is that the testimony offered on the trial did not authorize or sustain the verdict and judgment.

We have examined the evidence and cannot agree with the learned counsel in that contention. While this court on appeal shoúld" set aside a conviction where there is an entire want of evidence to sustain it, we do not think-that this is such a case. We think that the jury from the evidence could fairly and justly reach a conclusion of the guilt of the defendant and that the court from the evidence cannot on appeal fairly say that the verdict was the result of passion or prejudice.

If this had been an attempt to prove the character of the house by general reputation, we think it would have been inadmissible upon principle, and within the decision of People v. Mauch, 24 How., 276 , and the cases there cited. But it was not. The character of the house was sought to be proved by the frequent quarrels, noise, profanity and lewd conversation that occurred there by night and day, and as evidence bearing upon the character of the house the character of the women who frequented it was proved by reputation. This we think was admissible and proper. In People v. Mauch, supra, p. 279 , the court says: “In Wharton’s Grim. Law, § 661, it is said, evidence of general reputation as to a gambling house, or disorderly house, is not admissible, and at § 3290 it is said that proof of the character of the women who frequent such a house and the character and conduct of the men, and the effect upon the neighborhood, is admissible.”

The rule that character of persons may and must be proved bjr general reputation is too well settled to require citation of authorities ; we think it was competent to prove the character of the persons who were in the habit of visiting this house, by reputation, and that their characters were proper evidence to be considered by the jury in determining the character of this house. United States v. Stevens, 4 Cranch C. C., 341 ; U. S. v. Jourdine, id., 338 ; Wharton’s Crim. Law, vol. 2, § 1452. The remaining question raised by the appellant on this appeal was, “ Had the recorder jurisdiction to try the defendant with a jury of six persons?”

The manner of procuring a jury in the court of special sessions for the trial of offenses triable before such courts is plainly prescribed in title 1 of part 5 of the Code of Criminal Procedure. Section 703 of that title prescribes how a jury shall be procured, and that twelve jurors shall be summoned. Section 705 provides that the names returned shall be written on strips of paper and placed in a box. Section 706 provides that the court must draw out six of the ballots or more, if any are set aside on challenge. Section 708 provides for summoning talesmen. Section 709 provides for issuing in certain cases a new order or venire, and § 710 provides that “ when six jurors appear and are accepted they constitute the jury.”

These provisions of the statute seem effectually to dispose of the last objection.

The judgment and conviction of the court of special sessions and that of the court of sessions are both affirmed.

Learned, P. J., and Landon, J., concur.