
    The People ex rel. Henry Lotz, Resp’t, v. James Norton, Sheriff of Queens County. The People, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    1. Pleadings—Complaint—Excise Law.
    A complaint, under the excise law, which specifies no mode of sale or gift withiii the prohibition of the statute, is insufficient.
    A Special sessions—Change of magistbate.
    Another magistrate cannot be substituted to hold the court of special sessions after its organization.
    Appeal from an order discharging relator from imprisonment.
    
      John Fleming, Hist. Atty, for the people; Henry A. Monfort, for resp’t.
   Bykman, J.

This is a proceeding under habeas corpus for the discharge of the relator from imprisonment. The relator was charged before George Wallace, a justice of the peace of the town of Hempstead, in Queens county, with violating the excise laws of the state “ by selling or giving away intoxicating liquors without having a license therefor.” Upon the reception of such complaint, Justice Wallace issued a warrant for the arrest of the relator, and he was arrested by virtue thereof, and brought before the same justice, where he- was arraigned and pleaded not guilty. The relator demanded a trial by jury, and the case was adjourned several times. The venire for the jury was issued by the same justice, and the final adjournment was until the 28th day of June, 1893, when the parties appeared, Justice Wallace took his seat, impaneled the jury, and administered the oath to the jurors after they were selected. Thereupon Justice Wallace called upon George W. Smith, another justice of the peace of Queens county, to take his place, and he did so. Justice Wallace thereupon retired, and Justice Smith proceeded with the trial. Such substitution was with the assent of all the parties and their counsel. The relator was convicted, and sentenced to pay a fine of $25, and, in default of payment, was committed to the county jail. This proceeding was instituted to procure his discharge from such imprisonment.

In the first place, it is to be noted that the complaint against the relator charges no criminal act. It is not an offense, against the statute to sell or give away strong or spiritous liquors unless it be done in the manner .prohibited -by statute, and this complaint specifies no mode of sale or gift within such prohibition. The justice of the peace, therefore, was furnished with no authority for the issuance of a warrant for the arrest of the relator, because he was charged with the commission of no crime. The case is equally strong in favor of the order of discharge upon the merits. In each warrant for the arrest of a person upon a criminal charge there is inserted a direetion to the executive officer to bring the defendant before the magistrate issuing the warrant, or, in case of his absence or inability to act, before the nearest or most accessible magistrate in the same county. Code Cr. Proc., § 151. But, even without such a provision in the warrant, the defendant may be taken before the nearest or most accessible magistrate, if the one who issued the warrant be absent or unable to act. Id § 164. These are after the organization of the court and the reception of the return of the warrant and the plea of the defendant full jurisdiction is obtained, and no change is permissible. When the defendant is brought before the magistrate he organizes a court of special sessions for the trial, receives the returns of the warrant, takes the plea of the defendant, and proceeds with the trial; and there is no authority for the substitution of a second magistrate to hold the court after its organization. If the magistrate who organizes the court is absent or unable to act, there must be an adjournment, or the prosecution falls. Courts of special sessions, like all inferior courts, must act within their jurisdiction. Neither ■did the consent of the parties confer jurisdiction. The evil was radical and incurable. The order should be affirmed.

Cullen, J., concurs.

Pratt, J.

(concurring). It is a general rule that a habeas corpus cannot be used to review trials before magistrates. If it appears that the magistrate had jurisdiction of the person and the subject-matter, and the mittimus shows upon its face those two facts, the writ will be dismissed; but in this case a sortof trial was had before the magistrate, and from that it seems the relator was not charged with any offense. If the relator had also sued out a writ of certiorari, he would be entitled to a discharge, as the record neither shows any charge nor conviction of a crime.. We think it was irregular to go into proof before the county judge, except to traverse the return; in fact, all the proceedings seem to have been irregular, from beginning to end. However, if all the matters are taken into consideration, I think the county judge did right in ■discharging the relator. Order affirmed.  