
    (66 Misc. Rep. 476.)
    PEOPLE v. MULLEN.
    (Franklin County Court.
    March, 1910.)
    t. Criminal Law (§ 253)—Jurisdiction of Justices of the Peace—Adjournment—Application to Take Cause to Grand Jury.
    In cases which a. justice of the peace has exclusive jurisdiction to try under Code Or. Proc. '§ 57, relative to the exclusive jurisdiction by Courts of Special Sessions, the justice upon accused’s demand must adjourn the case to give him an opportunity to apply to a county judge for a certificate to take the case to the grand jury.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 525; Dec. Dig. § 253.*]
    2. Criminal Law (§ 226*)—Preliminary Examination—Jurisdiction of Justices of the Peace.
    A justice of the peace may grant a preliminary examination of a criminal charge, in cases only which a Court of Special Sessions cannot try, , and in which the justice is obliged to discharge accused or send the case to the grand jury.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 473; Dec. Dig. § 226.*]
    3. Criminal Law (§ 253*)—Jurisdiction of Justice of the Peace—Second . Application for Certificate to Grand Jury.
    Under the express provisions of Code Cr. Proc. § 56, subd. 2, a Court of Special Sessions has exclusive jurisdiction in the first instance to try an accused charged with assault in the third degree and where, after denial of accused’s application to the county judge for a certificate that the case be sent to the grand jury, under section 57, providing that upon filing with the magistrate before whom is pending a charge for any of the crimes specified in the preceding section (relating to the exclusive jurisdiction of Courts of Special Sessions) a certificate of the county judge that it is reasonable that such charge be prosecuted by indictment, etc., the proceedings before the justice shall be stayed and a return made by him to the district attorney, accused appears before the justice and is granted a preliminary examination under sections 188 and 190, relating to preliminary examinations of accused, and, after taking the testimony, his motion to be discharged is denied, and he is held for the grand jury, he cannot again apply for a certificate that the case be sent to the grand jury upon the ground that the justice having heard the testimony is prejudiced and disqualified to try him since he is not obliged to be tried before the justice, but is entitled to a jury trial, and may appeal if any legal error is committed thereon.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 525; Dec. Dig. § 253.*]
    
      James Mullen was charged with assault in' the third degree and applies for a certificate to send the case to the grand jury under Code Cr. Proc. § 57. Application denied.
    John W. Genaway, Dist. Atty., for the People.
    Charles A. Burke, for defendant.
    
      
      For other cases see same topic & § number In Dec. & Am! Digs. 1907 to date, & Rep’r Indexes
    
   PADDOCK, J.

This is an application by the defendant for a certificate under section 57 of the Criminal Code to send the case to the grand jury. The charge was made before M. H. Burno, justice of the peace of the town of Malone, Pranklin county, against the defendant for assault in the third degree. After the defendant was arraigned and pleaded not guilty, an application was made to the county' judge for a certificate under section 57 of the Criminal Code "on the ground that the defendant had a witness who was out of the state, and that no provisions were contained in the Criminal Code whereby the defendant could procure the attendance or secure the testimony of said witness in his behalf. This application was denied, for the reason that it was not a good ground upon which to grant a certificate, as in case the defendant went to trial before the justice it might be that he would be discharged and not need the testimony of the absent witness, and if convicted he could, no doubt procure the allowance of an appeal to the County Court and a new trial (Code Cr. Proc. §■§ 754, 764, 768), in which case the County Court could procure, upon his application, the testimony of the defendant’s witness under a commission. After said denial, the defendant appeared before the justice on the adjourned day and demanded an examination. The justice granted the same. The witnesses for the prosecution were examined and cross-examined by the defendant’s counsel, and after such examination the justice held the defendant to answer the charge, and adjourned the case to a later day for a trial.

The defendant now comes to the County Court upon a second application for a certificate under section 57, claiming that by reason of the justice having granted the preliminary examination upon the request of the defendant, and having heard the evidence and determined that it was sufficient to hold the defendant for trial, the justice is thereby prejudiced and is unfavorable to the defendant, and, by reason of the justice having passed upon the evidence sufficiently to determine that the defendant should be held for trial, said justice is disqualified to try the defendant, and that the defendant cannot have a fair trial before the justice. The defendant also claims that, at the close of the preliminary examination, he made a motion to be discharged upon the evidence, and this the justice denied, and that, having passed upon the evidence in the case by the denial of this motion, the justice thereby formed an opinion in regard to the guilt or innocence of the defendant, and therefore the justice is not impartial. Although the charge was one of assault in the third degree, which the justice had exclusive jurisdiction to try, the defendant, on appearing before the justice, after the application for a certificate under section 57 had been denied, demanded a preliminary examination under sections 188, 189, and 190 of the Code of Criminal Procedure. The defendant having demanded an examination, and the justice having granted the same, and after hearing the evidence, and a motion being made at the close of the testimony to discharge the defendant, and said motion being denied, the defendant now claims that the justice is not impartial by reason of such denial, has formed an opinion upon the evidence, and is therefore disqualified to try the defendant. . . .

There is no doubt but that the justice committed .an error when he granted the defendant’s request for a preliminary examination under sections 188, 189, and 190 of the Code of Criminal Procedure in a case like this, namely, assault in the third degree, which the justice has exclusive jurisdiction to try. All the sections of the Code of Criminal Procedure from 133 to 699 relate exclusively to proceedings prosecuted by indictment, and have no bearing upon any action prosecuted without indictment such as are included within section 56 of the Code of Criminal Procedure. People v. Johnston, 187 N. Y. 321, 79 N. E. 1018. There is, perhaps, one exception to this statement, and that comes under section 211 of the Code of Criminal Procedure, and .subdivision 38 of section 56. It is true that section 211 refers to subdivision 37 of section 56, but that is plainly an error in the type. It undoubtedly refers to subdivision 38 of section 56 for the reason that subdivision 38 also refers to section 211. In a case coming under section 211, the justice cannot grant a preliminary hearing, for he must, if the defendant requires a trial by a Court of Special Sessions, try him, otherwise only hold the defendant to answer to a court having a grand jury. In other words, in all cases under section 56, which the justice has exclusive jurisdiction to try, the justice must, if the defendant demands it, adjourn the case to give the defendant an opportunity to apply for a certificate to take the case to the grand jury. To refuse to do this is reversible error. People v. Cowie, 88 Hun, 498, 34 N. Y. Supp. 888. If the certificate is granted, the defendant must be held to answer to the grand jury without any further proceedings. If the certificate be not granted, then the justice must proceed to the trial without any preliminary examination. Preliminary examinations can be granted by the justice in those cases only which Special Sessions cannot try, and in which the justice is obliged to discharge the defendant or send the case to the grand jury. There are besides these two classes of cases another class, those that come under subdivision 38 of section 56, and also section 211. These are cases which the justice would have jurisdiction to try, but not exclusive jurisdiction to try. In this class- of cases the justice cannot hold preliminary examination. The defendant when informed' of his rights, has the right to choose whether he shall go,to trial before the justice or go to the grand jury, and his election determines the procedure by the justice. If he elects to go to trial, the justice proceeds to trial without any preliminary examination; if the defendant elects to go to the grand jury, the justice must hold him to answer before a court having a grand jury, without any preliminary examination. In the case at bar, being assault in the third degree, it was the duty of the justice to try the defendanf, and when the defendant demanded a preliminary examination it was the duty of the justice to refuse it.

We now come to the question whether having granted the preliminary examination upon the defendant’s request, and upon the evidence being taken, and the defendant moving to have the charge dismissed on the ground that the evidence was insufficient to make a case, and, the justice having denied it, the justice is thereby prejudiced and not impartial to such a degree that the defendant cannot have a fair trial, and that the defendant has, by reason thereof, a right to a certificate sending the case to the grand jury. I do not think the defendant’s claim is tenable. The fact that the justice, after hearing the evidence on the part of the prosecution, did deny the defendant’s motion to be discharged, was no more the forming of an opinion in regard to the evidence on the part of the justice than the fact that the justice, at the time the information and deposition was laid before him, determined to issue the warrant. It was simply a determination by him that the facts warranted the issuing of a warrant and the holding of the defendant to trial. Moreover, the defendant is not obliged to be tried before the justice. He has a right to demand a jury trial, and if the defendant thinks that the justice, by reason of having passed upon the evidence and deposition, and having determined that a warrant should issue, or, as in this case, upon the defendant’s request, having heard all the testimony of the complainant and witnesses, the justice decided that a prima facie case was made sufficient to put the defendant upon trial, the defendant can demand a jury trial, and thus prevent the justice from passing upon the facts and have them determined by a jury of his peers. If any error is committed, or the defendant is in any way legally prejudiced, defendant has a remedy by appeal. The theory of the statute is that these minor offenses shall be tried and disposed of before the justices, or a Court of Special Sessions. It is not the intention that any and all of these minor offenses should be sent to the grand jury upon a certificate of a county judge, simply because the defendant asks it. The law has left it in the discretion of the county judge so that, in case of any reasonable prejudice on the part of the justice, the defendant could ■secure the protection afforded by this provision of the law.

I do not think that this case is one where the county judge should interfere, but that the defendant should be required to try out his case before the Special Sessions, with or without a jury as required by law. I so hold, and deny the certificate.

Application denied.  