
    SUPREME COURT—SPECIAL TERM—KINGS COUNTY,
    December, 1914.
    THE PEOPLE ex rel. EDGAR T. BEAMISH v. LOUIS H. REYNOLDS, CITY MAGISTRATE.
    Trial—Preliminary examination before magistrate—Defendant entitled TO BE SWORN AND TESTIFY IN HIS OWN BEHALF.
    A city magistrate refused to allow a person charged with crime of assault in third degree, to be sworn as a witness on his own behalf. • Held, error, but the defendant should not be discharged on habeas corpus but be sent back to magistrate for further examination.
    Habeas Cobjpus to inquire into cause of detention.
    
      Hector McGowan Curren for relator.
    
      James C. Cropsey, District Attorney (Harry G. Anderson, Assistant District Attorney, of counsel), for respondent.
   Kelly, J.:

One Pantilione, charged with the crime of assault in the third degree, demanded an examination before the respondent city magistrate, and the complainant and his witness having been examined and cross-examined the defendant’s counsel called him as a witness in his own behalf and asked that he be sworn. The magistrate refused to administer the oath or to allow counsel to examine him on the ground that as his jurisdiction was limited to holding the prisoner for trial in another court, he was not entitled to be sworn and to testify in his own behalf at the preliminary examination. He held that the defendant might, if he so desired, make a statement in relation to the charge against him as provided in section 196, Code of Criminal Procedure, but that he had no right to testify as a witness in his own behalf. The defendant having been held for trial at the Special Sessions obtained-a writ of habeas corpus, claiming that he had been denied his statutory right to testify and that his imprisonment is illegal. The district attorney, conceding that the practice followed by the respondent prevails in many of the magistrates’ courts, agrees with the counsel for the defendant that the magistrate was in error in his ruling. Prior to the enactment of chapter 678, Laws of 1869, entitled “ An act in relation to evidence in criminal prosecutions, and in all proceedings in the nature of criminal proceedings,” a defendant has no well-defined right to be heard as a witness in his behalf on a prosecution for crime. That statute provided:

“ In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes or offenses, and in all proceedings in the nature of criminal proceedings in any and all courts and before any and all officers and persons acting judicially, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness ; but the neglect or refusal of any such person to testify shall not create any presumption against him.”

This statute now appears in the Code of Criminal Procedure as section 393. In People v. Hinksman (192 N. Y. 421) the Court of Appeals says:

“ The law in this State governing the right of accused persons to testify in their own behalf is now contained in section 393 of the Code of Criminal Procedure, which provides that ‘ the defendant in all cases may testify as a 'witness in his own behalf, but his neglect or refusal does not create a presumption against him.’ This section of the Criminal Code is identical in scope and effect with the statute of 1869, which remained in force until 1886 (1881?), by which a person accused of crime was given the right to testify in his own behalf, and it will be observed that the privilege is conferred without limitation or qualification.”

It is true that this section of the Criminal Code is found in Title VII relating to trials, but there can be no doubt that it applies to the examination as well. There is no good reason for holding the contrary, whereas if a magistrate hears the defendant who voluntarily submits himself for examination and cross-examination, it may well be that many cases now sent to the grand jury and the Special Sessions, necessitating rehearings and trials, with final discharge of the defendant, can be disposed of as well at the preliminary examination. While a magistrate is not authorized to try and determine the issue of guilt or innocence, his duties on "a preliminary examination are not perfunctory, and call for the exercise of sound judgment for the protection of the public interests and the defendant’s rights. Under our law the defendant is not obliged to take the stand in his own defense, and the Legislature says that his failure to testify cannot be taken against him. Courts and prosecuting oificers follow the legislative command, although not always certain that despite the mandate of the Legislature, the failure of a defendant to testify may affect a trial jury. But surely, where a defendant at any state of the proceeding offers to take the stand and subject himself to examination and cross-examination, it appears to be opposed to our institutions that he should be denied the right to do so.

Therefore I think the magistrate was in error, but it does not follow that the defendant is entitled to discharge from imprisonment. The case should be sent back to the magistrate for further examination so that he may hear the defendant’s testimony and then determine whether there is reasonable ground for holding him for trial.  