
    The People of the State of New York, Respondent, v. George D. Brown, Appellant.
    (County Court, Schuyler County,
    October, 1909.)
    Criminal law — Offenses and grades thereof — Acts constituting offenses —■ Public intoxication.
    Public intoxication—Acts constituting offense
    Where the only charge made against a defendant was that of intoxication in a public place, proof that, at the time the officer without a warrant arrested him, he was lying down upon a couch in a private house where he was a frequent visitor, will not justify his conviction in a Court of Special Sessions of the crime charged, even if he was intoxicated at the time of his arrest.
    Where there is nothing in the return on appeal from said judgment of conviction to warrant a conviction of defendant upon any other charge, he is entitled to be discharged.
    Appeal -from a judgment of a Court of Special Sessions, convicting the defendant of the crime of intoxication in a public place.
    W. Robertson for appellant.
    Geo. M. Velie, district attorney, for respondent.
   Nye, J.

The defendant was arrested, at a private house, by an officer, without a warrant, and was taken before a justice of the peace. An information was made and filed charging the defendant with the crime of being intoxicated in a public place, which is a misdemeanor under section 1281 of the Penal Law.

The defendant was convicted, after a jury trial, and was sentenced to confinement in the Monroe County Penitentiary for ninety days.

■Section 763 of-the Code of Criminal Procedure provides that the appeal must be heard upon the original return.

The officer who made the arrest testified: I was telephoned to come to Benjamin’s; that Brown was licking his horse. I went down to Benjamin’s and sat on Young’s horse-block. Mrs. Benjamin came to the door and motioned me to come over. I did and went into the house and she was in the kitchen. I asked what she wanted. She wanted me to take Brown out of there — he was lying on the couch. I took him out of the house onto the street. He asked me what I was going to do with him. I said ‘ you are drunk and I am going to lock you up.’ The Benjamin house is a private residence.”

Mrs. Benjamin testified that the defendant was a frequent visitor at her house.

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; (’2) When the person arrested has committed a felony, although not in his presence; (3) When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.”

It would seem from the evidence as contained in the return that the officer was not authorized to arrest the defendant, upon the charge of intoxication in a public place, without a warrant.

The defendant was lying down upon a couch in a private house at the time the officer came to arrest him. That he was disorderly or creating any disturbance is not shown.

Ho crime was committed or attempted in the presence of the officer, unless the intoxication of the defendant in this private house, where it appears he was a frequent visitor, was a crime. If this was a crime it was not the crime of intoxication in a public place.”

It is urged on the part of the people that the arrest was made after the officer had taken the defendant out of the house and upon the street.

In People v. Soloman, 57 Misc. Rep. 288, the Court says: “ It is questionable procedure, to say the least, to take an intoxicated person who has gone to bed and is quiet and put him into the street in order to arrest him for intoxication in a public place without a warrant.”

Section 7 64 of the Code of Criminal Procedure provides: “After hearing the appeal the court must give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants, and may render the judgment which the court below should have rendered, or may, according to the justice of the case, affirm or reverse the judgment, in whole or in part, as to all or any of the defendants, if there be more than one, or may order a new trial, or may modify the sentence.”

The only charge made against the defendant is that of “ intoxication in a public place.”

There was not sufficient evidence to sustain a conviction upon this charge; and, as there is nothing in the return to warrant a conviction upon any other charge, the judgment of the Court of Special Sessions is reversed and defendant discharged.

Judgment reversed.  