
    The People, Resp’ts, v. Nellie Cowie, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1895.)
    
    1. Special sessions—Certification.
    In a case which is triable in the first instance exclusively by a court of special sessions under the provisions of section 56 of the Code of Criminal Procedure, the refusal of an adjournment, on the application ’of the defendant, to enable her to apply for a judge’s certificate, allowing the presentation of the matter to the grand jury, is error, though a jury trial had been previously demanded, where no step in the case had been taken before a request to withdraw that demand, and the application for the certificate, were made by the defendant.
    2. Magistrate—Jury trial.
    It is error to try before a jury a case which is triable before the magis- ' trate as such, and not before the court of special sessions; and, in such case, the trial and conviction by the jury gives the justice no right to pronounce judgment and issue his warrant for committal of the defendant.
    Appeal from a judgment, convicting the defendant of being a common prostitute.
    
      Charles A. Burke, for app’lt; Frederick G. Paddock, Dist. A tty., for the People.
   Mayham, P. J.

The defendant (appellant) was arrested upon a warrant by a police magistrate village of Malone, on an information filed with such magistrate, and sworn to, on the 14th of September, 1894, of which the following is a copy:

“ State of New York, County of Franklin, Vittiage of Malone—ss.: Be it remembered that I, J. J. Flynn, residing in the village of Malone, county of Franklin, N. Y., now come before O. C. Earle, Esq., a police justice of the villiage of Malone, in the county of Fmnldin, and give information, under oath, as follows, upon information and belief: That one Nellie Cowie, on the 1st day of September, 1894, at the village of Malone, in the town of Malone, county of Franklin, N. Y., at about eight o’clock in the afternoon of said, day, did commit the crime of being a common prostitute, against the person or property of the people of the state of New York, by, on or about August 15, 1894, having unlawful sexual intercourse with one Philip Groosha, and received pay therefor, and' with divers and sundry persons prior and subsequent thereto, whose names are to deponent unknown; wherefore your informant prays that the depositions of this informant and John Mahaney, Philip Groosha, W. A. Fobear, witness, may be reduced to writing, and duly subscribed, and that a warrant issue for the arrest of said accused, and that she be dealt with pursuant to the provisions of the Code of Civil Procedure.”

This information was duly verified, and on the 15th day of September, 1894, a warrant was issued thereon, reciting the accusation in the following words:

“ Information on oath having been this day laid before me that the crime of being a common prostitute has been committed, and accusing Nellie Doyle, nee Cowie, thereof.”

It is insisted that the information in the case was insufficient to give the justice authority to issue his warrant, as it does not state a crime known to the law, as defined and regulated by the Code of Criminal Procedure. This contention would be sound, within the case of People v. Olmstead, 74 Hun, 328; 56 St Rep. 311, if the authority of the magistrate and the character of the crime charged were solely derived from the provisions of the Code of Criminal Procedure. Under its provisions, common prostitution seems to be treated only as evidence of vagrancy, which isa crime, and in that case only when the accused has no lawful employment whereby to maintain herself. Code Cr. Proc. § 887, subd. 4. But, while the Code of Criminal Procedure governs the method of proceedings in an action of this character,, the provisions of chapter 187 of the Laws of 1881, as amended by section 8 of chapter 17 of the Laws of 1887, prescribes the nature and name of the offenses punishable by confinement in the “ House of Refuge for Women,” and among them is embraced “common prostitutes.” The information in this case in terms charged that offense, and was, we think, sufficient to give the justice jurisdiction, Having jurdisdiction, the examination of the complainant’s witnesses disclosed facts sufficient to authorize the issuing of the warrant. Ifit he assumed, as claimed by the appellant, that, to make a defendant amenable to the charge of being a “ public prostitute,” she must maintain that character at the time of the prosecution, still, that fact may be established by proof of improper and lascivious conduct immediately before the prosecution. The case in that respect is unlike that of public intoxication under the statute, when the accused must be found and arrested in a public place in a state of intoxication.

The most serious question in the case raised by this appeal is whether the justice should not have allowed the defendant an adjournment, to enable her to apply to a judge for a certificate that it was reasonable that the charge be presented to the grand jury under the provisions of section 57, Code Cr. Proc. As section 8 of chapter 187 of the Laws of 1881, as amended by chapter 17 of the Laws of 1887, confers jurisdiction on police magistrates in this class of cases, and as that is a special statute, it seems to follow that its provisions come within the language of subdivision 33 of section 56 of the Code of Criminal Procedure, and is one of the cases triable exclusively before the magistrate as a court of special sessions, unless the same is certified to the grand jury, unless the defendant waived that right by appearing and pleading to the merits and calling for a jury trial. The record discloses that on the 15th of September the defendant was brought before the justice, and by special counsel moved for her discharge—

“ On the ground that the affidavit and information do not state facts sufficient to state the crime charged, or any other crime; second, the information.charges the defendant with the crime of being a common prostitute, and there is no such offense known to the Code of Criminal Procedure or Penal Code of this state; and for the reason that the information does not charge a crime under the statute. Motion denied. Defendant pleads not guilty, and demands an examination. Court rules defendant is not entitled to an examination. Defendant called for a jury trial. Defendant’s counsel states he withdraws his request for a jury trial. People object to the withdrawal of the demand of defendant for a .jury-trial, and insist that defendant, having elected to have a jury trial in this case, cannot now withdraw such election, and the people have a right to try the case by a jury. Court refuses to withdraw the request. Defendant states or asks that her case be presented to the grand jury, and the proceedings be adjourned for not less than five nor more than ten days, to enable the defendant to procure and file with the court a certificate that it is reasonable that this charge be prosecuted by indictment, as prescribed by the Code of Criminal Procedure. People object that the crime charged here is not enumerated in section 56 of the Code of Criminal Procediere, and that she is not, therefore, entitled to the adjournment provided for in section 58 of the Code of Criminal Procedure. Motion denied. Defendant then demands a jury trial. Granted.”

The case shows that a venire was issued, a jury procured, and the hearing of the case adjourned from time to time until the 27th of September, then instant, when the case was tried before a jury, who rendered a verdict of guilty, upon which the defendant was, by warrant of the justice, committed to the House of Refuge for Women for a term of five years unless sooner discharged by the board of managers. If we are right in holding that this complaint was triable in the first instance exclusively by a court of special sessions, under the provisions of section 56 of the Code of Criminal Procedure, then it was error, we think, to refuse an adjournment, on the application of the defendant, to enable her to apply for a judge’s certificate allowing the presentation of the matter to the grand jury. The record shows that no step had been taken in the case, after the demand for a jury trial, before a request to withdraw that demand was made by the defendant. The right of the defendant, under section 58 of the Code of Criminal Procedure, to have time to make that application, is a legal right, guaranteed by statute, and not one resting in the discretion of the justice; and, when the defendant complied with the requirements of the statute in making the demand, it is error in the magistrate to refuse, which may be reviewed on appeal. But, if this case was one triable before the magistrate, as such, and not before a court of special sessions, then it was error to try it before a jury; and the trial and conviction by the jury gave the justice no right to pronounce judgment and issue his warrant for committal of the defendant. In either aspect of this case, we think the conviction erroneous.

The judgment of conviction is reversed.

All concur.  