
    Otsego County Court.
    August, 1898.
    PEOPLE v. MULKINS.
    1. Criminal law—Notice of appeal.
    If the affidavit and allowance of the appeal is delivered to the magistrate or clerk of the court rendering the judgment within five days after the allowance of the appeal, the appeal is deemed taken. It is not necessary to serve the affidavit and order upon the district attorney to perfect the appeal.
    2. Same—Warrant.
    Where the arrest is properly made without a warrant, there is no necessity for its subsequent issue.
    3. Same—Certificate.
    A justice of the supreme court or a county judge has no power, when the charge against the defendant is intoxication in a public place, to order that the charge be prosecuted by indictment. The court of special sessions has exclusive jurisdiction to try and determine the charge against the defendant.
    4. Same—Sentence—Modificatton.
    Section 764 of the Code of Criminal Procedure confers upon the court the power to modify the sentence imposed upon the defendant, if the court shall deem it in furtherance of justice to do so.
    Appeal from judgment of special sessions, convicting defendant of intoxication in a public place.
    W. J. Palmer, for appellant.
    Tilley Blakely, District Attorney, for the People.
   BARNUM, J.

The defendant was arrested by an officer without a warrant, and 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 chapter 312, Laws 1897, § 40. The defendant was committed under a plea of guilty, after having been informed by the justice that he was entitled to the aid of counsel and to a jury trial, and was sentenced to confinement in the Albany penitentiary for 90 days on the 7th day of July, 1898. An appeal to this court was allowed on the L2th day of July, 1898. ' A copy of the affidavit upon which the appeal was allowed was served upon the district attorney July 20r 1898. The district attorney asks the court to hold that the appeal was not perfected, and that this court has not acquiied 1 jurisdiction of the case, because of the failure to serve a copy of the affidavit and a notice of allowance of the appeal upon him within five days after the appeal was allowed, as provided by a clause of section 752 of the Code of Criminal Procedure which was added to the section by chapter 536 of Laws of 1897, and provides that the defendant or his attorney must, within five days after the appeal is granted, serve a copy of the affidavit and order upon the district attorney. The language of the amendment is emphatic, and the legislature evidently, intended that it should have some effect; but no provision is made in the statute prescribing any consequences for a failure " to comply with its provisions, nor does it contain language indicating an intent to change any other section of the code. Section 755, which provides when an appeal shall be deemed taken, was left the same as it has been since it was amended in 1890.

Section 755 provides that the affidavit and allowance of the appeal must be delivered to the magistrate within five days after the allowance of the appeal, and when so delivered the appeal is deemed taken. It is not necessary at this time to determine what effect can be given to a failure to serve upon the district attorney, as required by the amendment of 1897 to section 752. I am convinced that its effect is not such as to make it necessary to serve the affidavit and order upon the district attorney before the appeal shall be perfected. The defendant having complied with the requirements of section 755, the appeal was properly taken, and this court has jurisdiction of the case. Defendant’s counsel contends that the justice should have issued a warrant after the defendant was brought before him, and that judgment should be reversed because of his failure to do so. The arrest was properly made without a warrant. Code Crim. Proc., § 177. There was no necessity for them issuing a warrant. The office of a warrant is to bring a defendant before the court, and I cannot see any necessity for a preliminary examination for tiie purpose of determining whether he was properly arrested. That question can be better determined by the trial, which may follow if defendant does not plead guilty. A warrant if then issued would have commanded ■the officer to forthwith arrest the defendant and bring him before the magistrate, an entirely useless proceeding at a time when the defendant was already under arrest and before the magistrate on the same charge. The views above expressed seem to me- to be fully sustained by reason and by the authorities. People ex rel. Gunn v. Webster, 75 Hun, 281; People v. Burns, 19 Misc. Rep. 681. It is urged that the defendant had the right to apply to a judge of the Supreme Court, or to the county judge-of the county, for a certificate that it is reasonable that the charge be prosecuted by indictment, pursuant to section 57 of the Code of Criminal Procedure; and that it was reversible error for the court to omit to inform the defendant, when he was brought before him, that he had the right to make the application.

Section 35 of the Liquor Tax Law, as amended by chapter 312 of Laws of 1897, subdivision 2, provides that “Courts of special sessions shall have exclusive jurisdiction to try and determine, according to law, all complaints for violation of section 40. * * * Any person convicted in a court of special sessions for violation of any of these provisions of the liquor tax law, shall be punished according to the provisions of this act.”

Section 40 of the Liquor Tax Law provides that “ Any person intoxicated in a public place is guilty of a misdemeanor, and may be arrested without warrant while so intoxicated, and shall be punished by * * * imprisonment not exceeding six months. * * * The act giving Courts of Special Sessions exclusive jurisdiction to try and determine complaints for violation of section 40 of the Liquor Tax Law makes no exceptions. It does not contain any reference to sections 56, 57 or 58 of the Code of Criminal Procedure, so that the defendant cannot claim any privilege under the provisions of either of those sections, unless the language of the sections is broad enough to embrace a complaint for intoxication in a public place.

Section 56 of the Code of Criminal Procedure prescribes that “Subject to the power of removal provided for in this chapter, courts of special sessions * * * have in the first instance exclusive j urisdiction to hear and determine charges of misdemeanors committed within their respective counties as follows Naming thirty-seven crimes.

Section 58 provides : “ When a person is brought before a magistrate charged with the commission of any of the crimes mentioned in section fifty-six ” * * * it shall be the duty of the magistrate to adjourn to give time for the defendant to ' apply for a certificate and adds: “ And when the defendant is brought before the magistrate, it shall be the duty of the magistrate to inform him of his rights under section fifty-seven and this section.”

Section 57 provides for procuring a certificate that it is reasonable that the charge be prosecuted by indictment when the charge is any of the crimes specified in section 56. It then becomes important to determine whether section 56 contains language sufficiently comprehensive to apply to a charge of intoxication in a public place. Defendant’s attorney calls attention to subdivision 35, and quotes the words, “such other jurisdiction as is now conferred by statute,” etc., and claims that the language is sufficient to embrace the charge made against the defendant. The lanuage quoted by tbe attorney is not now a part of subdivision 35. The subdivision was amended by chapter 555 of Laws of 1896, and now reads, “for all violations of the provisions of tbe agricultural, poor and domestic commerce laws,” which manifestly, does not apply to the charge in question. My attention has not been called to any provision of law, and I have not been able to find any, which gives a justice of the supreme court or a county judge the power, when the charge against the defendant is intoxication in a public place, to order that the charge be prosecuted by indictment. The court of special sessions, in my opinion, had exclusive jurisdiction to try and determine the charge against tbe defendant. I think the proceedings before the court of special sessions were free from error.

Section 764 of the Code of Criminal Procedure confers upon the court the power to modify the sentence imposed upon the defendant, if the court shall deem it in furtherance of justice to do so. I am convinced that the justice imposed the sentence which seemed to him to be proper, and, without doubt, the effect upon the defendant of knowing that the law can lay a heavy hand upon those who violate its provisions will tend to impress him with the fact that it must be respected. So far as lam advised the defendant, while intoxicated, did not commit any injury to person or property, and does not belong to the criminal classes. I think that, after the warning which he has had, a modification of the sentence to imprisonmenUin the Albany penitentiary for 60 days may have a good effect, in restraining the defendant from a repetition of the offense.

An order may be prepared modifying the sentence to 60 days’ imprisonment in the Albany county penitentiary, and, as modified, affirming the judgment appealed from. The order may be submitted to the district attorney for approval, and, if necessary, submitted to me for settlement.  