
    The People ex rel. Kenney, Pl’ff, v. Cornell et al., App’lts.
    
      (Supreme Court, Kings Special Term,
    
    
      Filed February, 1894.)
    
    Information—Public examination.
    A justice of the peace in taking depositions of witnesses as to the commission of a crime, under § 148 of the Code of Criminal Procedure-, does not sit as a court, and the examination of witnesses need not he conducted in public.
    This was an application for a writ of prohibition to prevent a justice of the peace in Richmond county from taking otherwise than in public the depositions of witnesses as to alleged violations of section 41 of the Penal Code. The proceedings were instituted by an information that such crimes had been committed by “ John Doe ” and others, and witnesses were subpoenaed, brought before the magistrate, and examined in private; that is the public and persons claiming to be counsel for “John Doe’’and for the witnesses were excluded.
    
      George W. Wingate for the application ; Louis S. Phillips and W A. Shortt for the respondent.
   Cullen, J.

I am of opinion that the magistrate is not bound to admit the public when he entertains an information and application for the issue of a warrant. The statute provides : “ The sittings of every court within this state shall be public, and every citizen may freely attend the same.” But the magistrate when he receives an information, holds no court. Section 11, Code of Criminal Procedure, defines the courts of this state having original criminal jurisdiction, and a court of a justice of the peace is not to be found in the enumeration. He can hold a court of special sessions, but the court of special sessions has no jurisdiction to entertain an application for a warrant. Section 145, Code Civil Procedure, provides that the information is the allegation made to a magistrate (not to a court), and section 146 enumerates the magistrates who have power to issue a warrant of arrest. The proceeding before the magistrate is judicial doubtless, though for some purposes it has been held that he acts ministerially, but it is not a proceeding in court, nor is a court held at the time. The case does not fall within the terms of the statute. If, however, it is within the spirit o£ the statute, I concede the statute should be liberally construed. Thus, probably, summary convictions before a justice of the peace should be had in public. In Crisfield v. Perrine it is said (it was not necessary so to hold for the decision) that a coroner’s inquest is a judicial proceeding and' within the spirit of the statute. But it seems to me clear that an information is not within the spirit of the statute. The application is wholly ex parte, and its object is the apprehension of the accused, so that he may not fly from justice. It is not to try the accused. As to the examination of the accused after arrest, upon the request of the defendant, the magistrate must exclude all persons except the prosecutor and public oflicers. By section 39, page 726, II Bev. Stat., it is made a misdemeanor for a grand juror or public officer to disclose the finding of an indictment for a felony unless the defendant shall have been arrested thereon, or in actual confinement. Tli is is to prevent the escape of the defendant. As already stated the sole object of an information and the issue of a warrant is to bring the defendant to the bar of justice. To hold that such an application and the issue of the warrant must be in public would give the party charged the. very opportunity to escape, to prevent which the statute has made the disclosure of an indictment a misdemeanor. I think, therefore, that such a proceeding not only does not fall within the spirit of the rule as to the sittings of the courts, but oftentimes would be directly opposed to the general course of criminal procedure.

Application denied, with $10 costs.  