
    The People of the State of New York, Respondent, v. George W. Harper, Appellant.
    Third Department,
    June 29, 1910.
    Crime — plea — demurrer — defendant’s right to two days to prepare for trial •— error — waiver.
    A demurrer is not a plea to an indictment.
    By section 357 of the Code of Criminal Procedure a defendant in a criminal action is given an absolute right to two days after his plea in -which to prepare for trial, if he require it.
    Where the defendant in a criminal action having had two motions to dismiss the indictment denied, interposed a demurrer which was disallowed with leave to plead, and the district attorney thereupon served notice that on a certain day ■he would move the case for trial, but no opportunity was given defendant after the denial of his demurrer to ehter a -plea in a court presided over by a • judge hot disqualified to act, it is reversible error for the court to compel the defendant to proceed with the trial on the day named after he had entered a-plea of not guilty and asked for an adjóurñment of two days to prepare for trial.
    The error is not one within the purview of section 542 of the Code of "Criminal Procedure which permits the court on appeal to give judgment “without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” .
    The defendant did not waive the provisions of section 357 of the Code of Criminal Procedure by announcing in open court that he was ready for trial and by . refusing to plead, if such announcement and refusal were made before a judge disqualified to act. Whatever took place before such judge was coram nón judice as to the defendant.
    Appeal "by the defendant, George W. Harper, from a judgment of the County Court of Clinton county in favor of the plaintiff rendered on- the 13th day of January, 1909, convicting the defendant of the crime of libel.
    
      R. M. Moore and John E. Judge, for the appellant.
    
      Arthur S. Hogue, District Attorney, for the respondent.
   Cochrane, J.:

The defendant was indicted at a term of the Supreme Court in April, 1908. Before any proceedings were had thereon the indictment was transferred to the County Court. When the defendant was arraigned in the latter court in May, 1908, he made a motion to dismiss the indictment on the ground of informalities in its presentment. The county judge announced that he was disqualified from acting in this particular case and made no determination of the motion and no plea was entered. Subsequently the motion was made and denied at a session of the court held by a county judge of another county. Another motion was also made and denied to dismiss the indictment because of illegal evidence before the grand jury. .A demurrer to the indictment was subsequently interposed by the defendant, which was disallowed and leave given him to plead to the indictment. On or about January 2, 1909, the district attorney served on the defendant a notice that on the 11th day of January, 1909, he would “ request the court to order the defendant to plead to the indictment and move at once for trial.” Ho plea had up to that-time been entered, and there seems to have been no opportunity for the defendant, after the disposition of his motions and demurrer, to enter such plea in a court presided over by a judge not disqualified to act. On the day fixed by the district attorney in his said notice, the court was held by a county judge of another county and the defendant entered his plea of not guilty. He thereupon demanded two days in which to prepare for trial after his plea, as provided by section 357 of the Code of Criminal Procedure. This motion was denied on the ground that the demurrer constituted a plea to the indictment, and the court directed that the trial proceed forthwith. The defendant excepted to the ruling of the court, and stated that he proceeded with the trial under objection and protest, and that he claimed the statutory right to an adjournment of -two days. The trial was immediately commenced and resulted in the conviction of the defendant on the follo"wing day.

' The court was in error in holding that the demurrer constituted ' a plea to the indictment and in -depriving the defendant of his statutory right of two days between his plea and the trial. “ The only pleading on the part of. the defendant is either a demurrer or a plea.” (Code Grim. Proc. § 321.) A clear'distinction is'tlms made between a “ demurrer ” and a “plea.”- They are both pleadings, but the former raises an issue of law, while the latter raises an issue of fact, and they are not interchangeable terms. Section 330 of the Code of Criminal Procedure provides that “ if the demurrer be disallowed the court must permit the defendant at his election to plead, which he must do forthwith or at such time as the court may allow.” That practice was pursued, in the present case, but the defendant never had an opportunity to plead after'the disallowance of his demurrer until the day he was required to proceed with his trial. Section 332 of the Code of Criminal Procedure specifies three kinds of pleas, viz., guilty, not guilty, and a former judgment. Oh the day of his trial the defendant interposed the plea of. not guilty. Section 357’provides: “ After his plea the defendant ' is entitled to at least two days' to prepare for his trial if he require it.” This confers on the defendant an absolute right of which he cannot be deprived without his consent. The court could not, therefore, disregard this absolute right of the defendant and place him on trial immediately On receiving his plea.

This is not such an error, as.is specified in section 542 of the Code ' of Criminal Procedure, which permits' the court on the appeal to give judgment “ without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” To do that would constitute a substitution of the judgment of the trial court for the judgment of the defendant in respect to a matter which the statute has confided absolutely to the judgment of the latter, and would reduce the question to a • mere consideration of whether the discretion of the court had been so exercised as not to jeopardize the rights of the defendant, and would practically abrogate said section 357. It is the purpose of that section to give the defendant two days after his plea to prepare for his’ trial, if he requires it, whether he needs it or not.-

The learned' district attorney argues that the defendant waived this provision by previously announcing in court that he was ready for trial and by a previous refusal to plead. The difficulty with that argument is that those occurrences took place in a court which was not presided over by a judge qualified to act in this case. Whatever took place on those occasions was cor am non judice as to. this defendant.

We appreciate that the trial was much delayed and perhaps by reason of ■ obstacles unnecessarily interposed by defendant. But that does not justify us in depriving him of a right which is absolutely guaranteed him by statute.

The judgment of conviction must be reversed and a new trial granted.

All concurred.

Judgment of conviction reversed and new trial granted.  