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Gill v. People

10 N.Y. Sup. Ct. 187 Court N.Y. Sup. Ct. English

Delivered by Babbett, J.:

Contents

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p. 187
THOMAS GILL and EFFIE MORTON, Appellants, v. THE PEOPLE OF THE STATE OF NEW YORK, Respondents.

Headnote

Oourt of Special Sessions—otyeatiom to jurisdiction of—how waived—appeal from —Certiorari—what is brought up by—Indictment—when good—prisoner testifying in his own behalf—cross-examination of.
From the return to the writ of certiorari granted in this case, it appeared that the relators were originally brought before a committing magistrate and that they then elected to be tried before the Court of Special Sessions. Held, that by so doing they waived all objections to the jurisdiction of that court.
After the relators had been convicted of keeping a disorderly house, their counsel desired the court to note an appeal to the Court of General Sessions. Upon the argument before the General Term, their counsel claimed that after such appeal the prisoners could not he committed to the penitentiary. Held, that the writ brought up only the record and the proceedings to and including the judgment, but nothing subsequent thereto.
p. 188
Qucei’e whether there is any appeal from the Court of Special Sessions except that provided by article 4, title 3, part 4, chapter 2 of the Revised Statutes.
An indictment is good if the day and year can be collected from the whole statement, though they be not expressly averred.
Where a prisoner testifies in his own behalf, it is the duty of the court to interrogate him as fully as may be necessary, to test the truth of his direct testimony.
Wbit of certiorari to the Court of Special Sessions of the Peace in the city of ISTew York, to review the conviction of Thomas Gill and Effie Morton, of the misdemeanor of keeping a disorderly house.
Peter Mitchell, of counsel for the appellants.
P. K. Phelps, district attorney, for the respondents.

(1.) The justices of the Special Sessions return to the writ of certiorari that the appellants were originally brought before a committing magistrate, and there upon elected and required to be tried by such Court of Special Sessions. This return is not traversed, nor is there anything in the record, impugning its truth. This disposes of all the objections to the jurisdiction of the court.[5]

(2.) At the close of the trial, and after the prisoners had been sentenced, counsel desired the court to note an appeal to the Court of General Sessions for a rehearing of the ease. The point is now made, that, after such appeal, the court erred in committing the prisoners to the penitentiary. The notice given to the court below, was not of an intention to remove the conviction by certiorari, and an offer to become bound in a recognizance to appear at the General Sessions, as provided by article 4, title 3, part 4, chapter 2 of the Revised Statutes.[6] These provisions were abolished by chapter 769 of the Laws of 1857,[7] but seem to have been restored by chapter 339 of the Laws of 1859.[4]

We have not been referred to any law, giving a direct appeal to the General Sessions, with a rehearing in- that court, to a person convicted at the Special Sessions, except, perhaps, in cases of petit

ǁ ǁ § 1.

p. 189
larceny, or assault and battery, not riotous; and then only where the prisoner had not demanded such trial.[5] But the question does not properly arise upon certiorari. That brings up the record and the proceedings to and including, but not subsequent to judgment, and we have simply to determine whether any error has been shown, such as would justify a reversal of the judgment. If, as claimed, the judgment became void by a simple appeal to the General Sessions, then this certiorari was improperly issued, and should be quashed. The remedy in such case would be to offer the Special Sessions bail for trial at the General Sessions, and if this were refused, to procure the release of the prisoner, pending the new trial, upon habeas corpus issued for the purpose of fixing and taking such bail.

(3.) The remaining points call for no special consideration. That, as to the constitution of the court, has been decided adversely to the views of the appellants by the Court of Appeals. The objection to the form of the judgment of the court below, is not well taken. It is questionable whether even the particular situation of the house, by way of local description, need be stated.[6] The objection to the form of the complaint, is equally untenable. It was not taken at any stage of fhe proceedings below, and the idea now advanced is certainly somewhat far fetched, viz., that a complaint is to be deemed barred by the statute of limitations, because no specific date is named. The complaint, however, does substantially aver that upon the 24th day of May, 1874, the appellants were the keepers of the disorderly house in question; that is clearly to be gathered from the entire complaint and its verification. The rule is well settled, that the indictment will be good if the day and year can be collected from the whole statement, though they be not expressly averred,[7]

(4.) There is nothing in the exceptions as to the admission of testimony, nor was the objection specified under the appellants’ fifth point, taken to any particular question. It is evident from a perusal of the entire case, that the prisoners were not prejudiced by the admission of illegal evidence.

(5.) The remaining ground upon which a reversal is claimed, is that the court below erred in specially interrogating the prisoner.

* 2 R. S. (Edmonds’ ed.), pp. 739, 740, §§ 22, 23, 26.

† † 2 Bish. Cr. Pro., § 111.

‡ ‡ Star. Cr. Pl., ed. 55; 1 Bish. Cr. Pro., § 391.

p. 190
Gill chose to take the stand as a witness upon his own. behalf, and it then became perfectly proper, and indeed the duty of the court, to interrogate him as fully as might be needful to test the truth of his direct testimony.

(6.) We have gone over.the evidence, and are quite satisfied that the prisoners were guilty, and that the judgment was correct.

The conviction and judgment of the Court of Special Sessions should therefore be affirmed.

Davis, P. J., and Daniels, J., concurred.

Judgment and conviction affirmed.

Footnotes

  1. * The People v. Riley, 5 Park. 0. R., 404; Laws of 1855, chap. 337, § 5; Laws of 1859, chap. 491, § 1.
  2. † † 2 R. S. (Banks’ 4th ed.), p. 903, § 55.
  3. ‡ ‡ § 25.