
    Supreme Court—Appellate Division—First Department.
    January, 1905.
    THE PEOPLE v. JACOB HARBER.
    (100 App. Div. 317.)
    1. Jurisdiction—Discharge Upon Prisoner’s Own Recognizance is Admission to Bail Without Surety. j
    Defendant on February 16th, 1901, was arrested and charged with larceny from the person; on the 17th he was arraigned before a city magistrate, pleaded not guilty and was held for trial at a Court of Special Sessions, at which he was arraigned and discharged on his own recognizance. On April 5th the order discharging him was revoked and he was placed on trial before the Childrens’ part of the Court of Special Sessions, pleaded not guilty and was adjudged guilty, from which judgment he appeals. Held, that it must be assumed from the record that defendant was not tried when first arraigned and that no disposition was made of the case and that the court had jurisdiction to subsequently try him.
    2. Same.
    Assuming that the Court of Special Sessions had no jurisdiction to revoke the order discharging him on his own recognizance the defendant was then before the court charged with the crime, and assuming that the court had no authority to discharge the prisoner upon his own recognizance the effect of that order was not an acquittal.
    Appeal by the defendant, Jacob Harber, from a judgment of the Court of Special Sessions of the city of Hew York (Children’s Part), entered on the 6th day of April, 1904, convicting the defendant of the crime of petit larceny; also (as stated in the notice of appeal) from an order denying said defendant’s motion to set aside the judgment appealed from and for a new trial, and also from an order denying a motion in arrest of judgment.
    Isidor Cohn, for the appellant.
    Edward Sandford, for the respondent.
   Ingraham, J.:

The record states that the defendant was, on February 16, 1901, arrested and charged with the crime of larceny from the person; that on February seventeenth he was arraigned before a city magistrate; that he pleaded not guilty and was held for trial at a Court of Special Sessions; that he was arraigned before the Court of Special Sessions and discharged on his own recognizance; that on April 5, 1904, he was tried for.the crime before the Children’s Part of the Court of Special Sessions and was convicted, and after a motion to set aside the judgment and for a new trial and for an arrest of judgment and for a trial by a full bench was made he was committed to the house of refuge. When the case came on for trial before the Children’s Part of the Court of Special Sessions, counsel for the defendant stated that if the court found when he was first arrested that the defendant was too young to be tried he did not think that the court could reopen the case, whereupon the court stated that the defendant was discharged upon his own recognizance and subsequently brought back for trial. FTo other ruling was made and no1 exception was taken. The defendant then pleaded not guilty. The evidence for the prosecution having been taken, there Was no evidence offered for the defendant. The court found the defendant guilty. By the judgment it appeared that on February 19, 1901, before thie Court of Special Sessions the defendant was discharged on his own recognizance; that on April 5, 1904, the order discharging the defendant was revoked and the defendant was placed on trial, and on the 5th of April, 1904, was convicted and committed to the house of refuge. There is no other record as to the proceeding before the Court of Special Sessions when the defendant was first arrested and arraigned before it. I think we must assume from this record that the defendant was not tried when first arraigned, in 1901, and that no disposition was then made of the charge against him. A discharge upon a prisoner’s own recognizance. is nothing more than an- admission to hail without surety. There is nothing to show that there was any investigation as to the guilt or innocence of the defendant or any adjudication that he should not be tried for the crime charged. If, upon Ms being brought before the court for trial, for any reason he was not tried and was then admitted to bail, there was certainly nothing to prevent the court before whom the charge was pending from calling upon the prisoner at any time to appear for trial, and in case of his failure to appear rearresting him and then disposing of the charge against him. When the defendant was brought before the Court of Special Sessions consisting of three judges the order discharging Mm upon his own recognizance was revoked; but assuming that the court had no jurisdiction to revoke that order, the defendant wasi then before- the court charged with the crime, and it seems to- me that the court had jurisdiction to try him and render judgment if his guilt was proved. Assuming that the court had no authority to discharge the prisoner upon his own recognizance, the effect of that order was not an acquittal. There is nothing in the record to show that, when the defendant was discharged upon his own recognizance, the case was not adjourned to a subsequent day; nor did the prisoner make such a claim when he was arraigned for trial.

To reverse this judgment we must assume irregularity which was neither claimed nor proved before the trial court, and as the defendant was proved guilty of the charge, I think the conviction should be affirmed.

Van Brunt, P. J., and Patterson, J., concurred; Laughlin and Hatch, JJ., dissented.

Laughlin, J. (dissenting):

I am of opinion that the court did not have jurisdiction over the defendant. As already observed, the record of the conviction from which the appeal is taken shows that the defendant was placed on trial on the original charge and by virtue of the original proceedings as modified hy tire order revoking the discharge. The conviction, therefore, cannot be sustained upon the theory that even though, by discharging the defendant upon his own recognizance without continuing or adjourning the court, jurisdiction was lost, yet the crime was not wiped out and the People were at liberty to proceed anew. I do not question the right of the People to proceed de novo so long as .the Statute of Limitations has not run against the prosecution; but, in so proceeding, it is manifest that the defendant being at liberty, it would be necessary to file an information and obtain a warrant for his arrest and to arraign him upon the charge, which does not appear to have been done. If the doctrine that jurisdiction of an inferior court is not presumed and that the record must show the jurisdictional facts has any substance left, then this conviction cannot stand. The Court of Special Sessions, of course, falls within the category of an inferior court of limited jurisdiction. It follows that its authority must be found in the statute. I have examined the provisions of the statutory law and find none that either expresslj or impliedly confers jurisdiction upon the Court of Special Sessions upon organizing for the arraignment o^ a prisoner and after talcing a plea to discharge him upon his own recognizance without any attempt to continue the case either by adjournment of the court or otherwise, and I am convinced that no such authority exists. The offenses over which Courts of Special Sessions in the city of Hew York have jurisdiction are enumerated in the Greater Hew York charter (Greater N. Y. Charter, § 1409) ; but the legislative authority conferred upon the court with reference to the arraignment of the defendant, the plea and the trial is that contained in the Code of Criminal Procedure regulating the authority of Special Sessions generally throughout the State. (Code Crim. Proc. § 741.) Section 699 of the Code of Criminal Procedure provides that “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.” Section 700 provides that the pleading must be oral and entered upon the minutes of the court, and section 701 provides that “upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury the .court must proceed to try the issue.” The only express provision for an adjournment is that contained in section 703 when a trial hy jury is demanded, and even then the trial of the case must not he postponed more than three days without the consent of the defendant. There are certain provisions of the charter of the city relating to methods of procedure in the Courts of Special Sessions designed to conform them to those in the Court of General Sessions; hut these provisions must he confined strictly to matters of procedure as distinguished from questions of jurisdiction. (Greater N. Y. Charter, §§ 1410, 1412.) In Matter of King (25 N. Y. St. Repr. 792) it was held that the Police Court of Buffalo, which is a Court of Special Sessions, had no power to adjourn a bastardy proceeding from September 29 'to November 27, 1887, citing sections 838 to 860 of the Code of Criminal Procedure. The only provision in the statute concerning an adjournment was that on the application of the defendant the case might be adjourned not exceeding thirty days. In People ex rel. v. Norton (76 Hun, 7) it was held that when a Court of Special Sessions is organized and the accused is arraigned and pleads, there is no authority for the substitution of another justice, and that by so doing jurisdiction was lost even though the defendant assented thereto. In People ex rel. Johnson v. Webster (92 Hun, 378; 11 N. Y. Crim. 59) it was held that a Court of Special Sessions having passed an unauthorized sentence ceased to exist and could not be reorganized to pass the proper sentence. In People v. McPherson (74 Hun, 336, 11 N. Y. Crim. 6) it was held that where the trial of a case is once commenced as by the arraignment of the defendant and taking of his plea in Court of Special Sessions it must proceed to the end before the same court. In People v. McLaughlin (57 App. Div. 454, 15 N. Y. Crim. 337), where a warrant was issued by a magistrate returnable before himself and the case was then sent before another maglistrate, who would have had jurisdiction originally, for trial, it was held that the court was without jurisdiction and the conviction was reversed. In, Lattimore v. People (10 How. Pr. 336) it was held that after the trial and conviction in a Court of Special Sessions sentence could not be passed the following day, as the court, not having been continued, terminated and could not be reorganized or revived as the statute confers no such power. In People ex rel. Cook v. Smith (9 N. Y. Supp, 181; affd., 125 N. Y. 692) it was held that when a trial is had in a Court of Special Sessions and the certificate of judgment delivered to the proper officer the court is functus officio, and, though the judgment orally pronounced was valid, if the certificate of conviction be void the justice has no power to revive the court for the purpose of signing a proper certificate of conviction. In People v. Andrews (50 Hun, 591, 7 N. Y. Crim. 314) it was held that where a .magistrate acquiesces in the request of the defendant to have the case presented to the grand jury and sends the papers to the district attorney, this terminates his1 jurisdiction. In Moore v. Taylor (88 App. Div. 4) it was held under the provisions of the Code of Civil Procedure (§§ 2959, 2960) that by an adjournment for more than eight days on the return of a summons where the defendant defaulted the court lost jurisdiction. In Hanshaw v. Arthur (9 App. Div. 175; affd. on opinion below, 161 N. Y. 664) it was held that by an unauthorized adjournment of a civil case a justice of the peace lost jurisdiction, the court quoting with ap proval the rule laid down in Jones & Crawford v. Peed (1 Johns. Cas. 20) as follows: “The sound rule of construction in respect to the courts of justices of the peace, is to be liberal in reviewing their proceedings as far'as respects regularity and form, and strict in holding them to the exact limits of jurisdiction prescribed to them by the statute.” The same principle was applied in Lurman v. Jarvie (82 App. Div. 37; affd., 178 N. Y. 599). In Duel v. Sykes (59 Hun, 117) it was held,. construing the provisions of sections 2934 and 2959 of the Code of Civil Procedure, that an adjournment of a civil case without joining issue, had without the consent of the defendant, terminated the jurisdiction. In Bonney v. Paul (15 N. Y. Supp. 442) where a civil case was adjourned to a day thereafter to be agreed on, or, in default of an agreement, to be fixed by the justice, and the defendant failed to appear on the day fixed by the justice pursuant to the agreement, the judgment was reversed for lack of jurisdiction. Many other cases might be cited applying the same doctrine, but these are sufficient, I think, to show that the Court of Special Sessions, which was organized to try the defendant on his being held for trial thereat by the magistrate, lost jurisdiction over the case by discharging the defendant on his own recognizance without proceeding with the trial or even fixing a time for trial or attempting to continue the court in session therefor.

The defendant was entitled to a speedy and public trial ” (Code Crim. Proc. § 8), and when he was brought before the justices of the Court of Special Sessions it was their duty, as they did, to organize the court and arraign him and take his plea. The defendant at that time was only about ten years of age, and it may well be that he was discharged on his own recognizance with a view to giving him an opportunity to reform, but the Court of Special Sessions possessed no such authority. It was its duty to keep' the court alive and maintain jurisdiction of the case until the judgment was pronounced. This, I think, it did not do.

Aside from the lack of jurisdiction, which I think is fatal to this conviction, I am of opinion that public policy requires the disapproval of the- practice of discharging prisoners upon their own recognizance. It is an arbitrary exercise of assumed implied judicial authority and is inimical to the public welfare. These magistrates should not be permitted to thus terminate a public prosecution properly instituted. It would be unwise to invest them with authority to say who should and who should not be brought to trial; but suffice it to say they have not yet been vested with such authority.

I think, therefore, that the conviction should be reversed and the defendant discharged.

Hatch, J., concurred.

Judgment affirmed.

Note.—Within the last few years there have been many changes in the statutes, with a view of extending the privilege of suspended sentence and of introducing and improving the probation system. This Harber opinion (supra) should be read in connection with Penal Code sections 12, 291, and Code Crim. Proc. sections 11a, 483, 487 and 554, which sections were variously amended by L. 1903, Chaps. 274 and- 613, and by L. 1905, Chaps. 655 and 656.

Penal Code section 12, as it now stands, authorizes not only courts of special sessions, but also magistrates to suspend sentence' and place the offender under probation. 
      
      Laws of 1901, chap. 466.—Rep.
     