
    The People of the State of New York, Respondent, v. Minnie James, Appellant.
    
      An information and a warrant specifically stating the crime, necessary to a prosecution in the Court of Special Sessions — such defects not waived by an appea/rance and failure to object.
    
    A party placed upon trial in a Court of Special Sessions, or in a Police Court, should be charged by an information, clear and definite, and the charge should be followed by a warrant specifically stating the crime alleged.
    
      Semble, that the fact that the party appears by counsel and does not make objection, to the proceedings taken before the Special Sessions, that no information was filed, no warrant issued or that the charge was indefinite or uncertain, is not a waiver of the defect.
    Appeal by the defendant, Minnie James, from a judgment of the County Court of the county of Monroe in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 25tli day of May, 1896, affirming a judgment of conviction rendered by a police justice of the city of Rochester on the charge of keeping a disorderly house.
    The defendant was arrested March 10, 1896, in a room in a block on South St. Paul street by a police officer, without a warrant, and taken before the police justice; and on the twelfth of March a hearing was had, the defendant appearing by counsel. At the close of the evidence the Police Court, according to the return, rendered a judgment, viz.: “ The judgment of the court was that the defendant, Minnie James, be committed to the Western House of Refuge for Women, at Albion, N. Y.” An appeal was taken to the County Court, and the judgment of the Court of Special Sessions was affirmed. The defendant appeals to this court.
    
      W. H. Whiting, for the appellant.
    
      George D. Forsyth, District Attorney, and Howard H. Widener, Assistant District Attorney, for the respondent.
   Hardin, P. J.:

Section 322 of the Penal Code provides that a person who keeps a house of ill-fame or disorderly house is guilty of a misdemeanor; and the section expressly provides that the section “ shall be construed to apply to any part or parts of a house used for any of the purposes herein specified.”

When the police officer entered the premises occupied by the defendant he had no warrant, and the defendant was taken to the Police Court, and no formal information was made and no warrant was issued by the police justice. The return of the police justice states “ that, in pursuance of said arrest, said defendant appeared in court, in person, and by her attorney; * * * on the 12th day of March, 1896, the case was called, and the court read to the defendant the charge against her, to which the defendant pleaded not guilty.”

The trial was had on the twelfth of March, and in the minutes of the trial certified by the police justice appear the following words: “ Charged with keeping a disorderly house.” At the close of the evidence the court rendered the following judgment: “ The judgment of the court was that the defendant, Minnie James, be committed to the Western House of Refuge for Women at Albion, UST. Y.” Ho objection seems to have been taken by the defendant’s counsel to the proceedings before the Court of Special Sessions on the ground that no information had been lodged with the magistrate, or that no warrant had been issued, or that the charge was indefinite or uncertain.

Section 177 of the Code of Criminal Procedure provides that a peace officer may, without a warrant, arrest a person (1) “ For a crime committed or attempted in his presence.”

Section 180 of the Code of Criminal Procedure provides, viz.: “ When arresting a person without a warrant the officer must inform him of the authority of the officer and the cause of the arrest, except when the person arrested is in the actual commission of a crime, or is pursued immediately after an escape.”

Section 145 of the Code of Criminal Procedure defines an information in the following language: “ The information is the allegation made to a magistrate that a person has been guilty of some designated crime.”

Section 148 of the Code of Criminal Procedure provides that “ When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant and prosecutor and any witnesses lie may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.”

Section 149 of the Code of Criminal Procedure provides as follows : " The depositions must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant.”

Section 150 of the Code of Criminal Procedure provides, viz.: " If the magistrate be satisfied therefrom that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant of arrest.”

Section 151 of the Code of Criminal Procedure defines a warrant and prescribes a form; and also provides, viz.: " The warrant must direct that the defendant be brought before the magistrate issuing the warrant, or if the offense was committed in another town, and is one which a Court of Special Sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, he must direct that the defendant be brought before a magistrate of the town in which the offense was committed.”

Section 152 of the Code of Criminal Procedure provides : “ The warrant must specify the name of the defendant, or, if it be unknown to the magistrate, the defendant may be designated therein by any name. It must also state an offense in respect to which the magistrate has authority to issue the warrant, and the time of issuing it, and the city, town or village where it is issued, and be signed by the magistrate with his name of office.”

Section 188 of the Code of Criminal Procedure provides as follows : “ When the defendant is brought before a magistrate upon an arrest, either with or without warrant, on a charge of having committed a crime, the magistrate must immediately inform him of-the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had.”

Section 194 of the Code of Criminal Procedure provides as follows : " At the examination, the magistrate must, in the first place, read to the defendant the depositions of the witnesses examined on the taking of the information, and if the defendant request it, or elects to have the examination, must summon for cross-examination the -witnesses so examined, if they be in the county. * * * ”

Section 196 of the Oode of Criminal Procedure provides that, when the witnesses on the part of the People have been examined, the magistrate must inform the defendant that it is his right to make a statement in relation to the charge against him.”

Section 197 provides, viz.: “ If the defendant waive his right to make a statement, the magistrate must make a note thereof, immediately following the depositions of the witnesses against the defendant.”

Section 198 of the Code of Criminal Procedure provides that, if the defendant chooses to make a statement, the magistrate must take it in writing, without oath; and section 199 provides that the answer of the defendant to each of the questions must be distinctly read to him as it is taken down.

Section 201 of the Code of Criminal Procedure provides that “ After the waiver of the defendant to make a statement, or after he has made it, his witnesses, if he produce any, must be sworn and examined.”

It seems that the police justice did not comply with the provisions of law to which reference has been made. We are of the opinion that before a party is placed on trial in a Court of Special Sessions, or in a Police Court, he should be charged by an information, clear and definite, and the charge should be followed by a warrant specifically stating the crime alleged.

In the case in hand we think the police justice did not, in that particular, comply with the statutes to which reference has been made, and that, for that reason, he did not acquire jurisdiction of the defendant, and the judgment of conviction should be reversed.

All concurred.

Judgment of the County Court and of the Police Court reversed, and the defendant discharged.  