
    SUPREME COURT—APP. DIVISION—FIRST DEPT.,
    November 8, 1912.
    THE PEOPLE v. BENJAMIN GOLDFARD.
    (152 App. Div. 870.)
    (I.) Disorderly conduct—Plea of former acquittal.
    A defendant, duly charged before a magistrate with disorderly conduct, in violation of section 1458 of the Consolidation Act, was duly arraigned on that charge, employed counsel to defend him, and entered upon the trial, and before hearing all the evidence the magistrate directed that a new complaint be made and that he be discharged. The new complaint was on the same facts, but charged a violation of section 720 of the Penal Law, under which the magistrate had no jurisdiction, and the case was transferred to the Court of Special Sessions, where the defendant’s plea in bar of a former acquittal was overruled, but after conviction he moved on the same facts in arrest of judgment.
    
      Held, that the defendant’s plea in bar was properly overruled, because, while what occurred was in effect an acquittal, there was no formal judgment of acquittal;
    (2.) Same—Arrest of judgment.
    That the motion in arrest of judgment should have been granted, the sentence of the court set aside, and the defendant discharged.
    (3.) Same—When defendant in jeopardy.
    Where a person is arraigned on a criminal charge, and required to go to trial before a court of competent jurisdiction, unless the trial is terminated by the disagreement of the jury, or their discharge pursuant to law, or by the consent of the accused, or through extreme or absolute necessity, or by illness or death, he has been put in jeopardy, and cannot be prosecuted again in the same or another court on the same charge.
    Ingraham, P. J., dissented, in part, with opinion.
    Appeal by the defendant, Benjamin Goldfarb, from a judgment of the Court of Special Sessions of the city of New York, rendered against 1he defendant on the 3d day of November, 1911, convicting him of the crime of disorderly conduct on a public conveyance, with notice of an intention to bring up for review the determination of said court overruling the defendant’s motion for his* diSfehabgé 'upon-a- plea .'of'former ■ acquittal in bar. .... .. . ,. .....
    On the 7th day of Hay, 1911, the defendant was arrested on an elevated train, at the 'railway -station- at Third avenue and One Hundred and Sixth street, in the borough of Manhattan, by an officer attached to the detective bureau of the police department of the city of Hew York, and was taken to police headquarters. He was released on. bail and .appeared in the Magistrates’ Court, Fifth District, on the following morning, where he was arraignéd on a charge made by the officer who arrested him in the form of an affidavit duly sworn to before the magistrate, the material parts of' which are as follows: “ That on the 7th day of May, 1911, at the city of Hew York, in the county of Hew York, 2:30 P. M., Benjamin Goldfarb (now here was on a north-bound elevated train, 3rd avenue and 106th street; and that he was disturbing the peace; and did then and there push and jostle passengers and' put his'' hands on the person of several passengers.”
    The people were represented by an assistant district attorney, and the defendant was represented by counsel; and a trial was commenced before the, magistrate before whom defendant was arraigned. One witness, the officer who made, the arrest, was called and examined for- the people. At the .close .of his testimony the magistrate ordered him t'o “ take the prisoner back and make another complaint,” and thereupon the officer signed and duly verified before the same magistrate-a deposition the material parts of which 'are as follows: - -
    “ That on the 7th day of April [May], 1911, at the city of Hew'.York, in the' coúnty of Héw York, Benjamin Goldfarb (now herd) violated the provisions of section 720 of the Penal Law of the State bf Hew1 York, in'the following manner, to -wit-: On the above date, about 2:30'o’clock, P. M:,- deponent saw-this defendant in the doorway leading from the inside of the ear to the platform on a north-bound 3rd avenue elevated train at 106th street and 3rd avenue, that then and there deponent saw this defendant annoy the passengers on said train by pushing and jostling said passengers and putting his hands on the person of said passengers.
    “ Wherefore, deponent asks that said defendant be dealt with according to law.”
    Immediately thereafter the magistrate, in answer to a question by the officer as to what he was going to do with the first charge, upon which the trial was commenced, said that he discharged the defendant. The indorsement on the first affidavit on file in the Magistrate’s Court contains, among other things, the following:
    “ Dis: Mew Complaint.
    “Disposition: Under sec. 720, Penal Law.”
    The district attorney thereafter filed an information in the Court of Special Sessions based upon the second deposition made by the police officer, charging the defendant with disorderly conduct on a public conveyance, and the defendant was arraigned on this information in the Court of Special Sessions. He interposed a plea of former acquittal, and in support thereof proved the facts hereinbefore stated, claiming that he had thereby been put in jeopardy on the same charge. The- court ruled that he had not been formerly put in jeopardy, and after hearing evidence with respect to the occurrence which resulted, in his arrest, found him guilty. The defendant thereupon moved on the same facts in arrest of judgment. The motion was denied and hé was sentenced to the penitentiary for eleven months.
    
      X. 'Henry Rosenberg, for the appellant. •
    
      Robert -0. Taylor, for the respondent.
   Lattghxin, J.:

It is conceded by the learned assistant district attorney that errors were committed on the trial of this case, which require a reversal; but in the view we take of the case we do not deem it ■necessary to examine the alleged errors with respect to the reception of evidence. Counsel for the defendant insisted on the trial that his client had been formerly put in jeopardy on this same charge and he pleaded a former acquittal in bar, and on proof of the facts set forth in the statement of facts he contended that by virtue of the provisions of section 6 of article 1 of the Constitution, he was entitled to have the information dismissed. That plea was overruled, but at the close of the evidence and after conviction he moved on the same facts in arrest of judgment. Counsel for the respective parties join in requesting that this court decide the questions arising on these contentions, for if either of them be well founded the defendant should be discharged.

It appears by the statement of facts that the defendant having been arrested without a warrant, was duly charged by the officer who made the arrest, before a magistrate having jurisdiction to try the offense, with disorderly conduct, which was a violation of the provisions of section 1458 of the Consolidation Act (Laws of 1882, chap. 410), which provides as follows: “ Every person in said city and county shall be deemed guilty of disorderly conduct that tends to a breach of -the peace, "who shall in any thoroughfare or public place in said city and county commit any of the following offenses, that is to say: * * *

3. Every person who shall use any threatening, abusive or insulting behavior with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.”

He was duly arraigned on that charge, employed counsel to defend him, and entered upon the trial, and before hearing all the evidence the magistrate directed that a new complaint be made and that he be discharged. The new complaint was on the same facts, hut it charged a violation of section 720 of the Penal Law under which the magistrate was without jurisdiction to try the defendant, whereas he had exclusive jurisdiction under the original charge, but on conviction thereunder he could not receive as severe a sentence. The fact that the magistrate did not intend to acquit the defendant is of no importance. Undoubtedly the object of the magistrate in directing that the officer charge the defendant with a violation of section 720 of the Penal Law was to have the case taken to the Court of Special Sessions, where a greater sentence might be imposed if he were convicted.

It is well settled that where the court directs an acquittal, no matter how erroneously, the defendant cannot be subsequently tried on the same charge. (People ex rel. Stabile v. Warden of City Prison, 139 App. Div. 488, 25 N. Y. Crim. 49, affd. 202 N. Y. 138, 26 N. Y. Crim. 108; Kepner v. United States, 195 U. S. 100, 130; People v. Miner, 144 Ill. 308; People v. Barrett, 2 Caines, 304. See, also, People v. Goodwin, 18 Johns. 187.) The People were at liberty to rest on such evidence as they saw fit to offer, and the defendant was under no obligation to offer any other. The fact, therefore, that only one witness was sworn is of no importance. I am of opinion that it is the well-settled rule that where a person is arraigned on a criminal charge, and required to go to trial before a court of competent jurisdiction, unless the trial is terminated by the disagreement of the jury, or their discharge pursuant to law, or by the consent of the accused, or through extreme or absolute necessity, as by illness or death, he has been put in jeopardy and cannot be prosecuted again in the same or another court on the same charge; and the discontinuance of the prosecution is equivalent to a discharge, for the constitutional protection grants the defendant immunity against a second trial. (People ex rel. Stabile v. Warden of City Prison, supra; People v. Goodwin, supra; People v. Barrett, supra; Shepherd v. People, 25 N. Y. 406; Kepner v. United States, supra.) I am of. opinion that the defendant was quite as -much in jeopardy1 before the magistrate in the cáse at bar as if- the prosecution had continued until the close of the evidence, and" there' had been a motion made for-his acquittal, which was granted.

■It seems;1 however,. that the- defendant’s plea in. - bar - was. properly overruled, for" the reason that; while-what occurred was-in effect ari "acquittal, there- was. no formál judgment of acquittal. (Code Crim. Proc., § 332; People ex rel. Stabile v. Warden of City Prison, supra; People v. Goodwin, supra.) Doubtless the defendant would have been entitled to a discharge on a writ of habeas corpus, on being held to answer" the second charge (People ex rel. Stabile v. Warden of City Prison, supra); but this was not his • only remedy, and he was- at liberty after conviction to move in arrest of ■ judgment on these facts, as he did. (People v. Goodwin, supra; People v. Barrett, supra; People ex rel. Stabile v. Warden of City Prison, supra.)

Without, therefore, considering whether any other error was committed on the-trial, I am of opinion that the defendant’s motion in arrest of judgment should have been granted, and he should have been -thereupon discharged- from" custody; and this-court should now do what the'trial court should have done.

■ The motioit in arrest of judgment therefore, is granted, and the sentence of the court is set aside, and the defendant discharged; 1 ■ " '

Sco'tt, -llrmsB and' Dowbing, JJ., concurred; Ingraham, P.' J.,"1 dissented tin part--- ■

Ingráhám,' P.'J". (dissenting in'1 part):

J”do- not -think :that- there: was a “former judgment of convictioif or acquittal -of -the crime-" charged-” In', this- case which-entitled-the defendant "to hi"s' discharge upon -the- trial by the Court of-Special-Sessions.---' (Code Crim. Proc., § 332.)

The defendant was arrested hy a police officer and brought before a magistrate, and was there charged with “ disturbing the peace, and did then and there push and jostle passengers and put his hands on the person of several passengers ” by the police officer who arrested him. The record before the police magistrate is very incomplete, and from the record it would be impossible to state just what' disposition the magistrate made of this charge. I think the deposition of the police officer was of itself a sufficient charge of a misdemeanor under section 720 of the Penal Law. That section provides that “Any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place or with the passengers of any public stage, railroad car, ferry boat, or other public conveyance, or who shall disturb Or offend the occupants of such stage, car, boat or conveyance, by any disorderly act, language or display, although such act, conduct or display may not amount to an assault or battery, shall be deemed guilty of a misdemeanor.” It is true that the deposition of the police officer did not mention this section or expressly allege that the defendant was guilty' of a crime under it, but it alleged facts which, if true, disclose a violation of this section. When the defendant was brought before the police magistrate it was the duty of the magistrate to proceed to examine the case unless the' defendant waived examination or elected to- give bail. (Code Crim. Proc., § 190.) This the magistrate. proceeded to do. There is nothing in the record to show that the magistrate proceeded against the defendant under section 1458 of the Consolidation Act (Laws of 1882, chap. 410) rather, than under section 720 of' the Penal Law. The police officer who made the arrest was examined by the magistrate,, who directed him to make a new complaint, which expressly charged the defendant with a 'violation of the provisions of section 720 of the Penal Law, and in that new complaint he- went more fully into the facts preceding the arrest, and upon this new complaint the defendant was held for trial at Special Sessions. There was no acquittal of a charge made under the section of the Consolidation Act, but a charge was made against the defendant which would be a violattion, both of the section of the Consolidation Act and section 720 of the Penal Law. The police officer says that after the new charge was made and the defendant was committed for trial the magistrate said something about his being discharged under the first complaint, but, as I read the record, the defendant was never placed upon trial for a violation of the -Consolidation Act, but was simply charged with an offense for which he might be punished under either the Consolidation Act or the Penal Law. The hearing before the magistrate, so far as appears, was the,examination which any person arrested with or without a warrant is entitled to, and the direction to the police officer to prepare a new charge was simply a direction to obtain a more specific statement of the facts under section 720 of the Penal Law.

•I think, therefore, there was no trial of the defendant for any offense, but an examination by the magistrate of a person arrested without a warrant for an offense which was a violation of the Penal Law. Certainly the mere direction of the magistrate to make a fuller complaint, or to prepare a new complaint setting forth the facts in more detail cannot be said to be an acquittal of the charge preferred against the defendant. I think the plea of a former acquittal is not sustained and that the court below was justified in trying the defendant.

There was error in the admission of testimony which the district attorney concedes requires a new trial.

I think, therefore, the judgment appealed from must be reversed and a new trial .ordered.

Judgment reversed and defendant discharged. Order to be settled on notice.  