
    The People, Resp’ts, v. Philip W. Frederick, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    ^Criminal law—Disqualification of judge.
    A magistrate who has once heen attorney in a matter cannot act as a judge in the same matter.
    Appeal from judgment of the Fulton county court of sessions, affirming judgment of an inferior court convicting defendant as a disorderly person in failing to support his wife.
    
      Frank I. Anderson, for app’lt; William Green (Andrew J. Nellis, of counsel), for resp’ts.
   Herrick, J.

The defendant, it appears, had been convicted as a disorderly person and that conviction reversed. He was again prosecutéd, as it is claimed, upon the same facts for tin-same charge.

Upon being arraigned before the magistrate he objected to his jurisdiction upon the ground that the magistrate appeared _ as. attorney for the prosecution in this matter before another justice ; it does not appear that the fact then claimed in the presence of the magistrate was denied, but the objection appears_ to have been passed upon as a question of law, and the objection, overruled.

It needs no citation of authorities to show that a magistrate-who has once been attorney in a matter cannot act as a judge in the same matter. Section 46, Code of Civil Procedure, is-but a re-enactment of the common law. And in a matter which, if true, reflects so scandalously upon the administration, of justice, the appellate court will not indulge in any presumptions to sustain a judgment where such an objection is made.

The objection was made in open court; there was no occasion for the defendant to give evidence to satisfy the magistrate of the fact; he knew whether it was true or false; and when the-record is left in such a condition that the appellate court cannot tell whether the magistrate overruled the objection as not true as a matter of fact, or whether he overruled it as not good in law, the court will not assume that it was for the latter reason ; if not true, in fact, it should be indicated on the record.

And if any error is made by the appellate court, it is better to> err on that side which will relieve the administration of the law from the "stain that would be placed upon it by upholding a conviction pronounced by a magistrate who had been the prosecutor of the defendant upon the same charge before another tribunal This conclusion renders it unnecessary to consider the other questions in the case.

Let the judgment be reversed.

Mayham, P. J., and Putnam, J., concur.  