
    The People vs. Fuller.
    A person arrested by a warrant on a charge of having violated the act to prevent the disturbance of religious meetings, can not be taken by the arresting officer before any magistrate other than the one who issued the process; the provisions of the statute authorizing persons arrested under a warrant to be brought before the nearest magistrate, he., it seems, apply only to cases where the accused may be required to enter into recognizance to appear at a court of criminal jurisdiction, or may be committed to jail.
    
      It seems, also, that where the accused is brought before the nearest magistrate, the officer making the arrest should state in his return the absence of the officer who issued the warrant. *
    Proceeding under the statute to prevent the disturbance of religious meetings. Leroy Fairchild, a justice of the peace of the county of Chenango, issued a warrant against David H. Fuller, under the statute to prevent the disturoance of religious meetings, stating a complaint on oath against Fuller, for the sale or gift of ardent spirits, within two miles of the place where there was an assemblage of people, met for religious worship (1 R. S. 647, § 64). Fuller was arrested by a constable, and taken before Abraham Tillotson, another justice of the peace of the same county, to whom the constable delivered the warrant issued by Justice Fail child, with a return endorsed thereon that he had arrested Fuller and that he was then in custody; and at the same time stated to Justice Tillotson that he had brought Fuller before him in consequence of the absence of Justice Fairchild, and that [212] Justice Tillotson was the nearest magistrate; “ which facts (Justice Tillotson returns), were known to me to be true.” Fuller objected to the jurisdiction of Justice Tillotson. The complainant alleged that Justice Fairchild was absent, and insisted that Justice Tillotson had jurisdiction. Fuller put in a formal denial in writing that Justice Fairchild was absent concluding the same by putting himself upon the country. The justice thereupon determined, without any proof, that Justice Fairchild was absent, and decided that himself had jurisdiction. Fuller refusing to answer the complaint, the justice, as he states in his return, “ did, in pursuance of'the statute in such case made, enter upon my minutes the plea of not guilty for the said David H. Fuller.” Fuller then put in a formal demurrer to the sufficiency of the warrant; the complainant joined, and the justice decided the warrant to be sufficient, and then without proof or inquiry into the truth of the complaint, imposed a fine of $15 upon Fuller, who refusing to pay the fine or to give security for its payment, the justice drew up a record of -conviction and issued a warrant to commit him to the jail of the county. The proceedings were brought before this court on a common law certiorari.
    
    
      H. R. Myg it, for the plaintiff in error.
    
      J. Clapp, contra.
   By the Court,

Bronson, J.

Persons arrested under a warrant for an offence may, in certain cases, be brought before a magistrate other than the one who issued the process (2 R. S. 708, § 12, 13). But the title in which these sections are found only relates to those criminal offences which the magistrate can not himself finally decide. It provides for the arrest and examination of offenders; and if not discharged for want of sufficient, proof, §20, the prisoner is either to be bailed or committed for trial, §25. The statute does not, I think, extend to this case, and the justice proceeded [213] without jurisdiction.

But if the defendant could be brought before a different magistrate from the one who issued the warrant, the justice erred in taking cognizance of the matter without any proof that Fairchild was absent. The constable did not in his return state the absence of the justice who issued the warrant, § 12; and although an issue of fact was joined before Justice Tillotson upon that point, he proceeded to decide it without any proof whatever. What the constable told him on that subject, or what the justice himself happened to know, were matters of no legal consequence. The constable should either have stated the fact officially in his return, or the absence of Fairchild should have been proved by a witness.

There is another fatal objection. The defendant did not confess the com plaint. He demurred to the sufficiency of the warrant. Although called a demurrer, it was only an objection that the warrant was insufficient. The justice properly overruled the objection, but he erred in pronouncing judgment, and imposing a fine in the absence of any proof whatever that ar offence had been committed. The statute directs that the justice shall, in such cases, proceed summarily to inquire into the facts, and if the defendant be found guilty, a record of the conviction is to be made (1 R. S. 676, §73) A subsequent act provides that the defendant, before the court shall proceei, to investigate the merits of the cause, may demand a trial by jury (Session Laws of 1834, p. 82, § 1).

This is not a re-examination of the conviction on the merits (1 R. S. 676 §73). If any evidence had been given to prove the offence, the decision ol the justice would not be reviewed; but this was a conviction in the total) absence of all proof of guilt. It is enough, however, that the justice had no jurisdiction.

Conviction reversed.  