
    The People of the State of New York, Respondent, v. Charles W. Hines, Appellant.
    
      A magistrate of New York city must reduce to writing the testimony on which he renders a judgment of conviction.
    
    The failure of a magistrate of the city of New York to reduce to writing the testimony upon which he rendered a judgment of conviction, is of itself a sufficient ground for the reversal of the judgment.
    
      It seems, that subdivision 6 of section 204 of the Code of Criminal Procedure only relates to preliminary examinations, and does not affect the magistrate’s duty upon a trial.
    Van Brunt, P. J., and O’Brien, J., dissented.
    Appeal by the defendant, Charles W. Hines, from a judgment and order of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 1st day of November, 1900, affirming a judgment of a city magistrate convicting the defendant of the crime of vagrancy, and sentencing him to a term of six months in the city prison,
    
      Louis Lowensteim,, for the appellant.
    
      Citarles LJ. Le Barbier, for the respondent.
   McLaughlin, J.:

The defendant was tried and convicted of the crime of vagrancy and sentenced to be imprisoned in the city prison of the city of New York for the term of six months. From this judgment he appealed to the Court of General Sessions of the city of New York, where the judgment was affirmed, and from the order and judgment of affirmance he has appealed to this court. He asks for a reversal of the judgment:

(1) Because it is not supported by evidence. (2) Because the magistrate before whom the trial Was had failed to keep the minutes of testimony. (3) Because the evidence was insufficient to warrant a judgment of conviction. (4) Because incompetent, irrelevant and immaterial evidence was admitted upon the trial,

The magistrate before whom the trial was had, according to the return as set. out in the record before us, did not keep any minutes of the testimony taken upon the trial. In the return he states: I do hereby further certify that no testimony was reduced to writing, except the papers, which are herewith included in this return,” and. the only papers included in the return are the information upon which the warrant was issued and the formal statement of the defendant to the effect that he was- not guilty of the charge. The only error alleged, therefore, inasmuch as the minutes of the trial are not returned, which can be considered by us is the second one, -and as to this the question seems to have been disposed of in People v. Giles (12 App. Div. 496). The same question was there presented and- determined, and this court held that where a magistrate fails to reduce to writing the testimony taken upon which the conviction is had, that that fact, in and of itself, is a sufficient ground for a reversal- of the judgment.

But it is urged by the respondent that a magistrate now is only required, in the city of New York, to reduce testimony to writing when a demand to that effect is made, either by the district attorney or the defendant, and as authority for that suggestion our attention is called to subdivision 6 of section 204 of the Code of Criminal Procedure. But this same suggestion was made in People v. Giles, when that case was before this court, and a conclusion reached adversely to the present contention. Mr. Justice Rumset, in delivering the opinion, said : “ It is said, however, that the magistrate was only required to reduce this testimony to writing when a demand to that effect was made either by the district attorney or the defendant, and as authority for that proposition is cited section 204 of the Code of Criminal Procedure. That section is contained in part IY of the Code of Criminal Procedure, which treats of the proceedings in criminal actions prosecuted by indictment. It is in that special portion of part IY which prescribes the proceedings to be had upon the preliminary examination which may result either, in the commitment of the defendant to await the action of the grand jury or in his discharge. The proceeding which is the subject of examination here is regulated, so far as it is regulated at all by statute, by part Y of the Code of Criminal Procedure, which treats of proceedings in Courts of Special Sessions and Police Courts, and which also contains regulations regarding proceedings before police magistrates. The directions contained in part IY for the regulation of proceedings in. .criminal actions, prosecuted by indictment, do not apply to the proceedings mentioned in part Y of the Code of Criminal Procedure, unless they are made so to apply by special provision of the statute. (People v. Cook, 45 Hun, 34.) Therefore, section 204, referring as it does only to preliminary examinations, in no way affects the duty of the magistrate in proceedings had under section 291 of the Penal Code, which are regulated, as we have seen, by part Y of the Code of Criminal Procedure. All these proceedings in part Y, including this particular one, may result in a judgment detaining the defendant or subjecting him to a fine. They, therefore, necessarily and finally dispose of the rights of the person who is brought before the magistrate; and a proper protection of those rights requires that the evidence taken before the magistrate, and which he holds is sufficient to warrant his action in depriving the defendant of his liberty, should be reduced to writing so that upon an appeal the correctness of his conclusions may be examined.”

It is true that upon appeal the conclusion of this court was reversed (People v. Giles, 152 N. Y. 138), but it was reversed only upon the ground that the affidavit upon which the appeal was allowed did not contain an allegation to the effect that the judgment of the magistrate was unsupported by evidence, and for that reason it was unnecessary to return the evidence. But that court approved of the conclusion of this court, so far as such approval may be gathered from the opinion delivered, that in a criminal case it is error sufficient to call for the reversal of a judgment of conviction if the magistrate did not keep the minutes upon which the judgment of conviction was given. Judge Haight, in delivering the opinion, said : Our magistrates are invested with important powers. Many offenses of a criminal nature may be summarily tried and disposed of by them. Their determinations in many instances involve the liberties and property of citizens. To permit them to exercise these important powers without keeping any minutes or records of the testimony upon which their determinations can be reviewed, would be contrary to public policy and would be investing them with autocratic powers greater than those possessed by any other officer of the government.”

It cannot be that the Legislature intended that a magistrate should be invested with power to deprive a citizen of his liberty without keeping any record of the evidence upon which the judgment is based. If one can be deprived of his liberty in this way, then it does not require a vivid imagination to see how insecure personal liberty is. But this is not the law, and public policy forbids that it should be. When one is. deprived either of his property or his liberty, the court depriving him of it must have record evidence justifying the action taken, which can be produced when .called for¿ in order that a review may be had by an appellate tribunal.

It follows that the judgment and order appealed from must be reversed and the case must be remitted to the Court of General Sessions, with directions to order a new trial which should be had in that court according to law.

Rtjmsey and Patterson, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented. >

Judgment and order reversed and case remitted to the Court of General Sessions as directed in opinion.  