
    The People of the State of New York, Respondent, v. Oscar A. Spier, Appellant.
    First Department,
    July 15, 1907.
    Crime — sale of articles for abortion — practice — time of. filing information— Code Criminal Procedure, section 743, construed—trial on two informations — evidence —sales to. other persons. • ,
    When a magistrate has returned to the district attorney papers in misdemeanor cases, as required by section 221 of the Code of Criminal Procedure, the district attorney under section 743 of that Code .may file an information against ‘ the defendant in the Court of .Special Sessions for any offense disclosed in said papers which has'been the subject of investigation.
    The- provision of section 743 of the Code of Criminal Procedure requiring the district attorney to file the information, when, the defendant is- not in custody, within ten days after the receipt by him of the papers from the city magistrate, is not a statute of limitations, but intended merely to forward the prompt and orderly dispatch of business. The failure of the district attorney to file the ¡ information within .that time'does not inure to the benefit of the defendant, nor is- the court ousted.of jurisdiction $o long.as the general Statute of Limitations .has noí run. . '
    .In a prosecution for violating- section 318 of the Penal Code in selling articles for causing unlawful abortion, the defendant cannot against his objection be tried in one action for sales of such articles made to different persons.
    It will not he presumed upon appeal that the prosecution was only for- the sale made to. the first witness for the prosecution.
    In a prosecution for selling articles for the purpose of causing unlawful abortions, it. is error to admit- evidence of other offenses in selling the article to other persons'in no way connected with the sale in question.
    - Appeal by the defendant, Oscar A. Spier, from a judgment of the Court of Special Sessions of the First Division of the City of New York in favor of ■ the plaintiff, rendered on the 31st day of May, 1906, convicting the defendant of the misdemeanor of a violad tióri of section 318 of the Penal Code, and also from an order' made on the -1st day of June, 1906, denying the defendant’s motion for a new trial.
    
      Saul J. Dickheiser, for the appellant.
    
      Robert S. Johnstone of counsel [William Travers Jerome, District Attorney], for the respondent.
   Clarke, J.:

The Medical Society of the County of New York complained to the City Magistrates! Court of the Fifth District of the First Division of the City of New York, upon information contained in the affidavits of Frances Benzecry, Katie Farenga and Mabel Kenny.that the defendant had violated section 318 of the Penal Code. That, section is as follows : “ A person who sells, lends, gives away, or in any manner exhibits or offers to sell, lend or give away, or has in his possession with intent to sell, lend or give away, or advertises, or offers for sale, loan or distribution, any instrument or article, or any recipe,'drug or medicine for "the prevention of conception, or for causing unlawful abortion, or purporting to be for the pre-, vention of conception, or for causing unlawful abortion, or advertises, or holds out representations that it-can be so. used or applied, or any such description as will be calculated to lead another to so use or apply any such article, recipe, drug, medicine or instrument, or who writes or prints, or causes- to be written or printed, a card, cir cular, pamphlet, advertisement or notice of any kind, or gives inf or. mation'orally, stating when, where, how, of whom, or by what zmeans such an instrument, article, recipe, drug or medicine can be-purchased or obtained, or who manufactures any such instrument, article, recipe, drug or medicine, is guilty of a misdemeanor, and shall be liable to the same penalties as provided in section three hundred and seventeen of this Code.”

A hearing was had before the city magistrate on the 26th of March,.1906, and upon the thirtieth of March the magistrate indorsed upon the papers, “There being-no sufficient cause to believe the within named defendant guilty of the offense within mentioned, I order him to be discharged.”" The papers bear an indorsement, “ Dist. Atty’s office. S. S.' Information April 2, 1906. Received,”,and the title of the case, “ The People, etc., on the complaint of Medical Soc. of Co. of N. Y. (Frances Benzecry) vs. O. Agnew Spier;”

Section 221 of the Code of Criminal Procedure provides that whenever a. magistrate has discharged a defendant or has held him to answer, he must, within five days thereafter, return the papers in cases of all misdemeanors, except charges of libel, in the city of New York, to the district attorney of the county wherein the offense charged was committed.

On the sixteenth of April the district attorney filed an information containing four counts in substance accusing the defendant of the crime of selling an article purporting to be for causing unlawful abortion, committed, as follows: that on the 10th day of March, 1906, he “unlawfully did exhibit, offer to sell and sell to one Mabel Kenny an" article,, drug and medicine, to wit, divers pills of ingredients and composition to me, the District Attorney aforesaid, unknown, purporting then and there to be for causing unlawful abortion,” and upon the same day" he' filed a similar information accusing thé defendant of unlawfully exhibiting,'offering to sell and selling, on the 30th. day of January, 1906, “to one Katie Farenga,': an article, drug and medicine * * * purporting then and there to be for causing unlawful abortion.”

The defendant demurred to each information upon the . ground, first, that the Court of Special Sessions had no jurisdiction..to try the alleged charge or alleged charges or any of them set forth in the informations; second, that the facts stated did not constitute a v crime; third, that more than one crime was charged, in the informations. The demurrers were disallowed. On May 31, 1906, the defendant was tried before the Court of Special Sessions. At the opening of the case his counsel said: “ I move to compel the prosecution . to elect Upon which information it is going to proceed. There are two informations in this case. The Court: Motion denied'; he can proceed upon any one. [Counsel for the defendant] : I do not know which one he wants to proceed on. Tlie'Court: We will see.” Defendant took exception to the denial of his motion. He also moved to dismiss both of the informations on the ground that the court had no jurisdiction to-try these particular informations, as they did not pertain to the subject-matter .tried in the lower court in that the defendant was charged in the court below with having committed a crime on the 23d of January, 1906 ; he was discharged in the Magistrate’s Court of that offense; that the. informations filed" here are not the informations charging the defendant with a crime on January twenty-third., but on March tenth and January tenth, different dates and different persons; and that the defendant did not' havé the benefit of a preliminary examination with regard .to the charges set forth in those particular informations, which motion was denied and exception taken. Thereupon four different women testified to four different sales upon four different. dates of drugs or medicines which they, testified the defendant stated would relieve them of their pregnancy.

Mabel Kenny was the first witness, and it was to her that one of the informations alleged that the sale had been made. To the testimony of the second witness the defendant objected upon the ground that she did not appear in the Police Court, and her testimony was not subject to cross-examination, and the defendant was not confronted with this witness in the Police Court, and the objection being overruled, he excepted. The defendant moved to strike out the testimony of the third witness on the ground that it related to a conversation.with the defendant which tended to show the commission of an independent crime other than the crime' mentioned in the information, and the motion being denied:, excepted. The fourth witness, being the one to whom the sale was alleged to have been made in the second information, having given her testimony, the defendant moved to strike it out on the ground that it tended to establish the commission of' an independent crime, and to the denial thereof excepted. ■ He then moved to dismiss the complaint upon the grounds of jurisdiction formerly referred to, which was denied, and at the close of the whole case renewed the motions made at the opening of the case for the dismissal of the informations and the discharge of the defendant, which were denied. Thereupon he was found guilty and sentenced to imprisonment in the city prison for three months. He thereafter' moved for a new trial, which was denied.

The appellant urges that the Court of Special Sessions was without jurisdiction, and bases his contention upon the provisions of section 743 of the Code of Criminal Procedure, which is as follows : Duty of district attorney in relation to the information and dismissal of prosecution.— The district attorney of a county within the city of New York, on the receipt by him of the papers in a criminal action, returned to him by a- magistrate as provided by section two hundred and twenty-one hereof, shall either make and file with the clerk of the court of special sessions an information against the defendant in such action, as provided in the last preceding section, or move in said court for the dismissal of the prosecution of the. action. This duty, unless the time prescribed therefor be extended by the court, .shall be performed in manner following: 1. Where a defendant is in custody the .information shall be filed not later than the day fol- ■ lowing the receipt .by the district attorney of the magistrate’s return, and in all other cases within ten days thereafter. 2. In all actions where return has been made to the district attorney as required by section two hundred and twenty-one of this Code,, and he has failed to make and file an information as provided in subdivision one of this section, he shall, within thirty days after .such return, move for the dismissal of the-prosecution of such action, filing with the. clerk of the court a statement in writing of his reasons for making such motion. 3. The district attorney . shall file with the clerk of the court all papers returned to him under the provisions of section two hundred and twenty-one of this Code, those upon which informations ar'e based with the informations and all others when he moves to dismiss the prosecution of the action in which they were taken.” ■

' The first objection, is that the district attorney had no right to file informations in either the Kenny or the Farenga cases, because in neither of those cases had there been a bearing before the magistrate. But it appears from the record that the County Medical Society was the complainant before the magistrate, and that the. .affidavits of Kenny and Farenga were submitted in that proceeding; and,x hence, were the subject of investigation by him, and while the district attorney concedes that under the statute a preliminary examination befqre a committing magistrate is essential before the district attorney’s right to file an information arises, it seems to me that when such an investigation has been had and the papers are submitted as required by the statute to the district attorney, he is empowered to file an information against the defendant for any offense disclosed in those papers which has been the subject of investigation.

The second point is that as the papers from the Magistrate’s Court bear the stamp of the district attorney’s office showing the receipt thereof by it on the 2d day of April, 1906, and the informations were filed on the 16th day of April, 1906, more than ten days after their receipt, the. Court' of Special Sessions had no jurisdiction in the premises. ■ The basis of this claim must be that the provision of section 143 of the Code of Criminal Procedure (supra;); requiring the district attorney to file the information where the defendant is not in custody within ten days after the receipt by him of the papers from the city magistrate* is a Statute of Limitations.

While we do. not think that this point is squarely raised by the record, yet, as it has been qrgued and is of importance, we proceed to state our views, which are, in brief,'that the statute was intended, after the Court of Special' Sessions was vested with jurisdiction of the trial of misdemeanors, except criminal libel, to provide for the prompt and orderly dispatch of business in said court. The. statute is directed to the district attorney. It provides what he shall do and when. The general statutes of limitation for the prosecution of dimes remain untouched, unaffected and nnrepealed. These statutes so remaining in full force and effect, it would be utterly unreasonable to hold that a statute directing the district attorney how to perform his duty should, by neglect upon his part, be turned into a short ten-day Statute of Limitations, preventing thereafter prosecution for a crime. If the district attorney has been derelict in his observation of the statute, that is for consideration in proper proceedings against him and does not inure to the benefit of the defendant, nor is -the- jurisdiction of the court ousted by delay in filing the information with it so long as the general Statute of Limitations has not run. ‘

The next point urged by the appellant is. that he was tried upon two informations for two separate and distinct offenses consisting of sales to two different women upon two different occasions. This point is well taken. The two informations both appear in this record ; both were filed upon -the same date, and botli bear upon their backs the names of the same four witnesses. By timely and continued motions. and objections the defendant sought to obtain knowledge of which crime he was being tried. The court declined to compel the district attorney to inform him and he. never was informed, but in addition to the two offenses covered by the informations evidence was given as to two other offenses consisting of sales to two other women upon two other days. We are unable upon this record to now determine of Avhich offense the defendant has been found guilty.

The learned district attorney asks us to draw the inference that, inasmuch as Mabel Kenriy was the first Avitness for the prosecution, therefore, the defendant was tried upon the information upon w.hich the sale was alleged to have been made to her, but surely, the order in which witnesses aré sworn for the prosecution is not to determine upon what' indictment or information a defendant is being tried. ■ It is conceded that it would-have been fatal error to have tried the^ defendant upon two informations at the- same time, but when he asked- upon which he was to stand trial information was refused him. , Such a judgment-cannot stand.

I am also of the opinion that if we assume, for the purpose of argument, -that he was being tried upon the Kenny information, the admission of evidence of- three other offenses with three other women upon three several occasions' was error. The information alleged that the defendant “ unlawfully did exhibit, offer to sell and sell to one Mabel Kenny an -article, drug and medicine-, to wit, divers jfills of ingredients and composition ■ to me, the. District Attorney aforesaid, unknown,, purporting then and there to be for causing unlawful abortion.” ■ He was not upon tidal for having caused an. abortion. He was not upon trial for selling an article for the prevention of conception or for causing unlawful abortion. He was upon trial for selling an article purporting to be for causing unlawful abortion, and that is all that the People attempted to show. When the defense undertook to show that the articles sold, administered in the way advised, could not have produced an abortion, the testimony was excluded, and, therefore, the dne question wliic-li was presented to the court was, did the defendant sell an article purporting to be intended for causing unlawful abortion ?

There was no dispute that the defendant did make a sale- of certain pills and suppositories to the witnesses.. Ho question of idéntity was involved; no question of motive was at issue; no general ¡lian or scheme was properly before the court, nor was it necessary to show any guilty intent. If the things sold were bread pills, and yet they were sold, purporting to be for the unlawful purpose, the offense denounced by the statute would have been committed. Therefore, what was in issue, iii order to establish the crime, were the statements and representations made by the defendant to the purchaser at the time of sale. The question of the admission of the evidence of other crimes upon the trial - of a specific crime was exhaustively discusséd in People v. Molineux (168 N. Y. 264), and: as I understand the law, the proof offered and received in this case of the other transactions, each one. of which consisted of a crime in itself, and was in no way connected with the sale to Mabel Kenny, does not come within any of the exceptions to the well-established rule that the State eannot prove against a defendant any’crime not alleged in the indictment, either as a foundation for a separate punishment or as aiding the proofs that he is guilty of the crime charged.

It follows, therefore, that the judgment of conviction appealed from should be reversed and a new trial ordered.

Patterson, P. J., Ingraham, Houghton and Lambert, JJ., concurred.

Judgment reversed and new trial ordered.  