
    COURT OF GENERAL SESSIONS—NEW YORK COUNTY,
    Oct. 1915.
    THE PEOPLE v. JULIUS MAGNUS.
    (92 Misc. 80.)
    Epileptic—When not criminally liable—When coNviction of offense OF DISORDERLY CONDUCT REVERSED.
    It is only when an epileptic is unconscious of the act he is committing that he is not criminally answerable.
    Where, according to the undisputed medical testimony, defendant at the time he committed an act of disorderly conduct tending to a breach of the peace was suffering from an attack of epilepsy, his conviction of the offense must be reversed, though sentence was suspended, on the ground that he should have been discharged.
    Appeal from a judgment of a City Magistrate’s Court.
    
      Henry Waldman, for appellant.
    
      Royal H. Weller, Assistant District Attorney, for respondent.
   Rosalsky, J.:

The defendant was adjudged guilty by a city magistrate of the offense of disorderly conduct tending to a breach of the peace, and sentence was suspended upon him.

Prior to 1907, a defendant convicted in the City Magistrate’s Court, and upon whom sentence was suspended, could not appeal to this court, but section 750 of the Code of Criminal Procedure, as amended, now accords him the right of appeal. In pursuance of this section, the defendant feeling aggrieved at the judgment rendered against him appeals to this court. The act attributed to him, and for which he was convicted, was committed, according to the undisputed medical evidence, while he was suffering from an attack of epilepsy. He testified in his own behalf that he had absolutely no memory of having committed the act charged against him, and he interposed the defense of epilepsy, and particularly that form thereof which is known as epileptoid automatism. A person afflicted with that form of disease is capable of committing an act which is apparently under his control and suggested or prompted by the operation of his mind, but the act may be accompanied by an abnormal and unnatural consciousness, in which case it is automatic and beyond the power of inhibition. A person afflicted with epilepsy may, during a seizure, commit an act, and after recoverng consciousness have total amnesia with regard thereto.

It does not follow that because a person is an epileptic he is incapable of committing a" violation of law and must be excused from criminal responsibility; it is only when he is unconscious of the act which he is committing that he is not answerable criminally. The disease frequently breaks out into what is known as epileptic furor, which comes without notice or special warning, and which after a brief period subsides.

Aside from the medical evidence that the defendant is an epileptic, the testimony of the police officer would seem to confirm the defendant in his statement that he had no memory of what had occurred immediately preceding his arrest. The record clearly shows that the defense of epilepsy was not a figment of the defendant intended to enable him to escape the Dalton, 46 App. Div. 264; People ex rel. Caridi v. Creelman, 150 id. 746; City of New York v. Knickerbocker Trust Co., 104 id. 223, 230; Barker v. Mayor, 17 Wend. 199, 200; Sachs v. Lyons, 53 Misc. Rep. 640; People v. Miller, 38 Hun, 82, 85; People v. Casegeanda, 15 Misc. Rep. 325, 326; People v. Bell, 148 N. Y. Supp. 735; City of Buffalo v. Stevenson, 145 App. Div. 117; People v. Harris, 87 Misc. Rep. 266:

If it were the intention of the legislature to except magistrates’ courts from the operation of section 941 of the Code of Civil Procedure in relation to the taking of proof as to the existence of a city ordinance, it would have so provided, either in that section, or in some specific statute; but, as the legislature has failed to make any such provision, the failure of the magistrate to take proof as to the eristence of the ordinance referred to necessitates the reversal of the judgment of conviction against the defendant.

The judgment of conviction is reversed, and a new trial ordered.

Judgment reversed and new trial ordered.  