
    The People of the State of New York, Appellant, v. John Perrin, Respondent.
    Second Department,
    November 12, 1915.
    Court of Special Sessions of City of New York—jurisdiction — arrest of judgment after conviction for insufficient proof before magistrate — grounds for motion in arrest of judgment.
    The Court of Special Sessions of the City of New York has no authority after an information has been duly filed therein by the district attorney under section 743 of the Code of Criminal Procedure, to arrest judgment after conviction, upon the ground that the proof before the committing magistrate was insufficient to warrant the holding of the defendant to answer.
    A motion in arrest of judgment is limited to two grounds: First, that the court has no jurisdiction over the subject of the indictment by reason of its not being within the local jurisdiction of the county; and, second, that the facts stated in the indictment do not constitute a crime. This rule applies to the Court of Special Sessions of the City of New York.
    •Appeal by the plaintiff, The People of the State of New York, from an order of the Court of Special Sessions of the City of New York, borough of Brooklyn, entered in the office of said court on the 3d day of June, 1915.
    
      Harry G. Anderson, Assistant District Attorney [ James C. Cropsey, District Attorney, with him on the brief], for the appellant.
    
      Maurice H. Gotlieb, for the respondent.
   Rich, J.:

The People appeal from an order of the Court of Special Sessions of the City of New York, arresting the judgment of that court after convicting the respondent of possessing burglars’ tools, under circumstances evidencing an intent to use them in the commission of a crime.

The only question to be considered on this appeal is whether the Court of Special Sessions is empowered, after an information has been duly filed in that court by the district attorney under section 743 of the Code of Criminal Procedure, to arrest judgment after conviction upon the ground that the proof before the committing magistrate was insufficient to warrant the holding of the defendant to answer.

The Court of Special Sessions of the City of New York except in the parts known as Children’s Courts, acquires jurisdiction to hear and determine misdemeanors committed in the city through the filing of an information by the district attorney. (Code Crim. Proc. §§ 221, 741, 742, 743.) Section 743 makes it the duty of the district attorney, upon receiving the return of a magistrate under section 221, to either file an information in the Court of Special Sessions or move in that court to dismiss the proceeding. Such information takes the place of, and is the same as, an indictment in the General Sessions or Supreme Court. (Code Crim. Proc. § 742; People v. Cully, 167 App. Div. 332, 335.) His duty is not dependent upon the question of whether sufficient evidence was produced before the committing magistrate to warrant the holding of the defendant. He acts purely ministerially, compliance with the statute is mandatory, he is not permitted to exercise any discretion, and there is no analogy between the filing of the information by him and the finding and presentation of an indictment by a grand jury, which is a judicial tribunal and acts judicially. The sections of the Code of Criminal Procedure to which I have referred prescribe the method for commencing prosecutions for misdemeanors, other than libel, in the Court of Special Sessions of the City of New York. The Legislature has the power to abolish the proceedings before a committing magistrate and direct that prosecutions be commenced in all instances by filing an information in the Court of Special Sessions by the district attorney, and under the existing law the Court of Special Sessions of the City of New York acquires complete jurisdiction over misdemeanors committed in that city, other than libel, by the filing of an information by the district attorney. (Code Crim. Proc. § 742; People v. Spier, 120 App. Div. 786; People v. Perez, 168 id. 958; People ex rel. Burns v. Flaherty, 119 id. 462; People v. Pascowitch, 158 id. 812; People ex rel. O’Brien v. Hayes, 38 Misc. Rep. 163; Bartley v. State, 53 Neb. 310; People ex rel. Hertz v. Warden, etc., 149 App. Div. 939; People ex rel. Phillips v. Hanley, 164 id. 150.) In addition, I think the determination of the committing magistrate, that sufficient evidence has been produced before him to establish the commission of a crime and sufficient cause to believe the accused guilty thereof, is conclusive, and that there is no power lodged in the Court of Special Sessions to review his determination'. If the evidence before him fails, the remedy is by habeas corpus, which is not a proceeding to review, but solely to test jurisdiction, and is successful when there is an absence of necessary proof before the committing magistrate. If there is some evidence, as in the case at bar, tending to show the commission of the crime and guilt of the accused, he has jurisdiction and his commitment is final no matter how erroneous his conclusion may have been. The respondent was arraigned, after information filed by the district attorney, before a court having exclusive jurisdiction, and entered a plea of not guilty and.the court thereupon obtained jurisdiction of his person, and it had jurisdiction of the subject-matter under section 31 of the Inferior Criminal Courts Act of the City of New York (Laws of 1910, chap. 659). Jurisdiction of the subject-matter is based upon the authority to hear and determine offenses of the class or grade charged in the information, and is not dependent upon the facts appearing in a particular case (Hunt v. Hunt, 72 N. Y. 217, 229), and jurisdiction of respondent’s person followed and was acquired by the filing of the information and plea of not guilty thereto (People ex rel. Phillips v. Hanley, supra), and could not be affected by the illegality, if there was illegality, in the method of bringing him before the court. He waived that objection when he pleaded not guilty to the charge stated in the information and proceeded to trial.

The respondent relies upon People v. Shenk (142 N. Y. Supp. 1081), a decision of the Court of Special Sessions, in which it is held that the court had power on a motion of the defendant to dismiss the information filed by the district attorney upon proof that the evidence before the committing magistrate was insufficient, and could send the proceeding back to him for further proof or dismiss it and discharge the defendant from custody. No statutory authority is claimed for the practice. The decision is unsound; it disregards the provisions of section 313 of the Code of Criminal Procedure which limits the causes for which an indictment may be set aside. The court sought to uphold its conclusion by the cases of People v. Glen (173 N. Y. 395, 399) and People v. Sexton (187 id. 495, 511), where it was held that an accused person has a constitutional right to the dismissal of an indictment upon showing that it was found upon insufficient or illegal evidence, and reasoned that the Court of Special Sessions likewise had the power to set aside an information filed by the district attorney in the discharge of his statutory duty for insufficiency in proof before the committing magistrate. In this conclusion the Court of Special Sessions misapprehended the effect of the cases it cited to sustain its declared conclusion. Both of those cases expressly recognize the right of the Legislature to regulate all matters of procedure in both civil and criminal actions, and, in addition, the principles of law upon which the decisions rest have no application to proceedings before a committing magistrate or before the Court of Special Sessions of the City of New York. They were statutory and may be regulated or abolished by the Legislature without interfering with the constitutional rights of a person charged with the commission of a crime cognizable by such court. The Constitution (Art. 6, § 23) vests the Legislature with the power to confer upon Courts of Special Sessions jurisdiction of offenses of the grade of misdemeanor. No constitutional rights of the accused are involved. The Legislature had the clear right to prescribe the grounds upon which an indictment might be set aside, which it did by section 313 of the Code of Criminal Procedure, which is binding on the Court of Special Sessions and no departure therefrom can be sanctioned.

It is well settled that a motion in arrest of judgment is limited to two grounds: First, that the court has no jurisdiction over the subject of the indictment by reason of its not being within the local jurisdiction of the county, and second, that the facts stated in the indictment do not constitute a crime. (Code Crim. Proc. §§ 323, 331, 467; People v. Cully, supra, and cited cases.) That case also holds that such Code provisions apply to the Court of Special Sessions of the City of New York.

The order must be reversed and the case remitted to the Court of Special Sessions of the City of New York for judgment to be rendered in accordance with law.

Jenks, P. J., Stapleton, Mills and Putnam, JJ., concurred.

Order of the Court of Special Sessions reversed, and case remitted to said court for judgment to be rendered in accordance with law. 
      
       Since altered into Children’s Court of the City of New York. (See Laws of 1915, chap. 531, § 6, adding to Laws of 1910, chap. 659, § 34a et seg. — [Rep.
     