
    (83 Misc. Rep. 308.)
    PEOPLE ex rel. HALL v. MUNSON et al.
    (Otsego County Court.
    December 20, 1913.)
    Criminad Law (§ 250)—Jurisdiction—Arraignment—Beading Charge.
    Defendant could not waive the reading of a charge to him, or the requirement that he plead as required by Code Cr. Proc. § 699, in cases where courts of special sessions have jurisdiction and defendant is brought before a justice, by informally giving an undertaking approved by the city judge and filed with the justice, and appearing by attorney only on the day set for trial, since the provisions of section 699 are mandatory ; sections 297, 856, and 473 permitting accused to appear by counsel upon arraignment in ease of a misdemeanor, etc., only applying to courts of record.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 520, 521-523; Dec. Dig. § 250.]
    In the matter of the application of the People of the State of New York, on relation of Morey J. Hall, against Ainer Munson and another for writ of certiorari.
    Application denied.
    John G. Johnson and George L. Bockes, both of Oneonta, for the motion.
    Edward O’Connor, of Delhi, opposed.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § itombek in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   A. L. KELLOGG, J.

This is an application for a writ of certiorari to review certain acts, process, and proceedings of Ainer Munson as a justice of the peace and magistrate of Special Sessions of the town of Franklin, N. Y., in all matters appertaining to a certain complaint entertained by him against T. Wendell Hall, Helen Hall, Dorothy Rhodes, and Reginald Coville, upon the complaint of one Joseph Bolles.

It is claimed by the relator, Morey J. Hall, that the proceedings in question were without jurisdiction or authority of law, and in violation of the constitutional rights of the defendants from which they have no remedy by appeal. Preliminary objections were made to the issuing of the writ upon the ground that the writ of certiorari has been abolished and that the only method of reviewing a judgment or order in a criminal action or a special proceeding of a criminal nature is by appeal. That the moving papers do not allege that the defendants have not been committed, and are not detained by virtue of any judgment, decree, final order, or process specified in section 2016 of the Code of Civil Procedure. The foregoing, with the various other objections made, have not been considered by reason of the determination reached on the merits.

It appears from the return of the magistrate made pursuant to the order of this court: That on the 9th day of September, 1913, one Joseph Bolles filed an information, alleging the crime of wanton and malicious mischief against his property had been committed by the individuals above mentioned, and that after taking several depositions, he issued a warrant for their arrest, and delivered the same to a constable of the town of Franklin, for service. That subsequently, and on the same day, the relator, in company with George L. Bockes, Esq., came before the justice and claimed to represent the defendants named in the warrant, and asked to have a date fixed at some future time when the defendants might appear, and arranged that defendants would execute an undertaking with sufficient sureties for their appearance on the 23d day of September, 1913, at 10 o’clock in the forenoon of that day. That subsequently said warrant was brought back to the justice by said constable without any return of service having been indorsed thereon by a justice or magistrate of Otsego county that any of the defendants had been admitted to bail for their appearance, or that bail for them or any of them had been taken as required by statute. That the defendants soon thereafter caused to be filed with the justice undertakings for their appearance, duly approved by W. Irving Bolton as city judge of Oneonta, pursuant to the agreement of counsel above mentioned. That ■on the 23d day of September, neither of the defendants appeared personally, but Attorneys John G. Johnson and George L. Bockes op-' peared for them, claimed to represent the defendants, and called for a venire that a jury might be obtained for the trial of said cause before him. That as no return had been made upon the warrant, and no certificate appeared thereon, that the defendants had been admitted to bail by any magistrate of Otsego county, and, as the defendants had not appeared before him personally, he declined to proceed upon the ground that he had not jurisdiction so to do. That, on the same day, and after so declining to proceed, the justice states that he issued a new warrant for the arrest of the defendants, and caused the same to be placed in the hands of a constable for service. That the constable on the same day made a return which was duly indorsed thereon with the certificate of the city judge of Oneonta, admitting the defendants to bail, and approving of undertakings in behalf of each of the defendants for their appearance on the 30th day of September, 1913, at 2 o’clock in the afternoon of that day, before him.

There is no dispute as to the facts. On the 23d day of September, at the time of the appearance of the several defendants in court by their respective attorneys, it is not contended that they, or any one of them, were present in person; that the charge for which the warrant had been issued for their arrest had ever been read to them, or that they had ever been in court for such purpose; that there had ever been any certificate by a magistrate of the county of Otsego, where the defendants reside, that they had given bail for their appearance before the magistrate who issued the warrant indorsed thereon, neither does it appear from the return of the justice as to whether the first warrant was ever served upon the defendants or any of them, and, if it had been so served, why a written return thereon had not been made by the peace officer who made such service. Although the defendants had not been taken before the city judge of Oneonta, under the first warrant for the purpose of admitting them to bail, undertakings had been filed with the justice, approved by the said city judge, that they would appear from time to time, or forfeit to the county of Delaware the sum of $100, and it is doubtless contended in behalf of the defendants that this was a compliance with the provisions of section 159 of the Code of Criminal Procedure, which provides:

“If the crime charged in the warrant be a misdemeanor, and the defendant be arrested in another county, the officer must, upon being required by the defendant, take him beforé a magistrate in that county, who must admit the defendant to bail, for his appearance before the magistrate named in the warrant, and take bail from him accordingly.”

The filing of the undertaking admitting the defendants to bail in the manner above set forth, without the actual service of the warrant upon the defendants, in addition to their appearance in court by attorney, is claimed by the defendants to have been a submission on their part to the jurisdiction of the court under the first warrant in such a manner that any judgment rendered therein might be legally and lawfully enforced, and that there was a waiver of any jurisdictional defect, if there was any such defect, when the defendants appeared by counsel, notwithstanding the fact that there had never been a compliance with the provisions of section 699 of the Code of Criminal Procedure, which reads as follows:

“In the cases in which the courts of special sessions .or police courts have jurisdiction, when the defendant is brought before the magistrate, the charge against him must be distinctly read to him, and he must be required to plead thereto.”

It is also contended in behalf of the defendants: „That the defendants having been arrested, or the first warrant having been issued for the alleged commission of a misdemeanor only, the personal appearance by the defendants was unnecessary, and that they might appear by counsel only, in accordance with the provisions of section 297 of the Code of Criminal Procedure, as it relates to the trial of indictments. That section 356 also applies thereto, which reads as follows:

“If the indictment be for a misdemeanor, the trial may be had in- the absence of the defendant, if he appear by counsel; but if the indictment be for a felony, the defendant must be personally present.”

That also section 473 applies, wherein it states:

“That judgment may be pronounced in the absence of the defendant.”

Acting upon this theory, the defendants, on the 23d day of September, demanded that a venire issue, and that a jury might be obtained for the trial of the defendants, at special sessions. The justice, however, refused to proceed for lack of jurisdiction, in that neither of the defendants had ever personally appeared before him. That no return had been made upon the warrant, and that no certificate appeared thereon that the defendants had been admitted to bail by any magistrate of the county of Otsego.

It is also urged in behalf of the defendants that, Under the circumstances above mentioned, when the justice refused to proceed, as he claimed, for a lack of jurisdiction, it was a discharge of the defendants as a matter of law, pursuant to section 673 of the Code of Criminal Procedure, which provides:

“An order for the dismissal of the action, as provided in this chapter, is a bar to another prosecution of the same offense, if it be a misdemeanor; but it is not a bar, if the offense charged be a felony.”

It is therefore urged for the defendants that the last warrant issued, and the arrests made under it* are illegal and unlawful, and in utter disregard of the rights of the defendants, and that they have grounds to believe that the said complainant and the said magistrate will continue to annoy said defendants, who it appears are infants, with unauthorized and illegal arrest, and proceedings, unless the complainant receives money largely in excess of damages actually sustained, or unless this court shall, in its discretion, protect the defendants and the parties interested in their behalf, by interposing between them the protection of the law.

From the affidavits presented on this application, it may be fairly stated, as a matter of fact: that on or about the 17th day of August, 1913, the defendants committed a trespass on the lands leased by the mplainant Bolles, which lease was soon to terminate, and that they some damage to an abandoned frame house on lands rented mlainant, which could have been remedied by the expenditure ~ to $10, and all of which damage the relator, the father of tw^ e defendants, offered to the complainant, and also to put the premises in as good shape and condition as before said damage occurred. That the complainant Bolles demanded $200 damages, and threatened to have all of said children put in jail, unless the same was paid. That the relator says he refused to pay, in that the same was excessive and extortionate. That thereafter the complainant offered to settle for $100, which being refused, the complainant sued each of said children in a civil action in the Supreme Court, County of Delaware, and the relator and the defendants contend that the various proceedings started were simply for the purpose of threatening and annoying them, and practicing extortion, and bringing shame and disgrace upon them in an unusual and unjust manner.

These various propositions are not for this court to determine, but the court has formed quite positive convictions upon one or more of these contentions in behalf of the defendants, in part from the affidavits used on this application. Such impressions have in no wise been diminished from the highly improper conduct of the complainant since the argument of this motion, and his threats to the court apparently made with the purpose and intent of affecting its decision. In the respects mentioned, he has barely escaped, indeed, a fine for contempt. Not the slightest criticism is intended to be made as regards the attorney for the complainant in any respect whatever.

This court has the utmost confidence in the ability and fairness of Ainer Munson, the magistrate in question, and feels assured that he will neither suffer nor permit any unjust or unusual punishment to be inflicted upon these infants, defendants, or will not give them a fair trial, conceding that they have done that which they ought not to have done, and are charged in both warrants with having committed, to wit, wanton and malicious mischief.

Recurring once more to the real question involved upon this application, could the defendants, after having apparently waived the service of the warrant, and instead of going before the city judge of Oneonta, to be admitted to bail, and having the same indorsed upon the warrant, informally give an undertaking approved by the city judge and filed with the justice, appear on the date set for the trial, by attorney only, and waive the provisions of section 699 of the Code of Criminal Procedure, which requires that in cases in which the courts of special sessions have jurisdiction, when the defendant is brought before the magistrate, the charge against him must be distinctly read to him, and he must be required to plead, and by such waiver give the magistrate jurisdiction to proceed.

I am of the opinion that these provisions cannot be so waived, and that sections 297, 356, and 473 of the Code of Criminal Procedure, all of which relate to the trial of indictments in courts of record, have no application to courts of special sessions. Surely, under the provisions of section 699, the defendant must at some time be brought before the magistrate, who must read the charge distinctly to him. Assuming for the sake of the argument that a defendant goes to trial in a court of special sessions, either with or without a jury, without having first been brought into court, and having the charge read to him, and such trial results in conviction, is he to be brought into court, after conviction, and have the charge read to him? I am not convinced such is the law. In other words, section 699 means just what it says, and there must be a compliance with its provisions.

Houghton, J., says., in McCarg v. Burr, 106 App. Div. 281, 94 N. Y. Supp. 680:

“The requirement of section 699 of the Code of Criminal Procedure, that when a defendant is brought before a magistrate the charge against him must be distinctly read and he must be required to plead thereto, is mandatory and vital to the interests of a person charged with crime.”

Where the charge was not read, however, it would not render void the conviction. People v. Carter, 88 Hun, 304, 34 N. Y. Supp. 764.

It may be conceded that wherein the defendant was arraigned before a city magistrate, and he was held to bail, both he and his surety executing an undertaking, that the defendant would appear and answer the charge mentioned, in whatever court it may be prosecuted, and if convicted would appear for judgment and render himself in execution thereof, as in People v. Miller, 63 App. Div. 12, 71 N. Y. Supp. 212, might not be required to be personally present at the trial, especially in case of sickness, or without the order of the court that he be so required to attend. For the reasons stated, the motion for a writ must be denied, but without costs. The defendants and each and every one of them are required to appear before Ainer Munson as justice of the peace, and a magistrate of the town of Franklin, county of Delaware, N. Y., under and pursuant to the second warrant of arrest,. Thursday, the 8th day of January, 1914, at 11 o’clock in the forenoon of that day, for such further proceedings thereunder as may have originally been taken and had therein.

Application for writ denied, without costs.  