
    
      February, 1886.
    PEOPLE ex rel. BAKER v. BEATTY.
    The objection that the prefix “un” was omitted from the word “lawfully,” in the charge, made against the defendant in a Court of Special Sessions, for unlawfully taking and carrying away oysters from certain oyster beds, cannot be urged on appeal for the first time, when it is not specified in the affidavit, required on appeal, by section 761 of the Code of Criminal Procedure.
    
      It seems, that such an objection, if properly raised, would be sustained.
    Appeal by defendant, George Beatty, and others, from a judgment of the Queens County Court of Sessions, which affirmed a judgment of a Court of Special Sessions, convicting defendant of unlawfully taking and carrying away the oysters of another, planted in a certain oyster bed in Queens county.
    
      W. R. Du Puy and W. T. B. Milliken, for defendants, appellants.
    
      John Fleming, district attorney, for the people, respondent.
   Pratt, J.

We entertain no doubt that the judgment entered in the Court of Sessions was proper, so far as it relates to the merits of the case. We concur in the opinion of the learned county judge in that respect

But the defendants now raise a point which does not seem to have been submitted at any stage of the proceedings below, either before the justice or at the sessions, viz,: that the prefix “ un ” was omitted from the word “ lawfully ” in the charge before the Special Sessions, so that the charge of the offense which was doubtless intended to allege that defendants unlawfully distributed and interfered with oyster beds, has charged that they lawfully did the acts alleged.

The section of the Code of Criminal Procedure (§ 56) which defines the jurisdiction of the Courts of Special Sessions, provides that they have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors committed within their respective counties, as follows: “ Unlawfully taking and carrying away the oysters of another, lawfully planted upon the bed of a river, bay, sound or other waters within the jurisdiction of this State.” It will appear from a comparison of the several subdivisions of paragraph 56, that the word “ unlawfully ” is an important one in defining the offenses over which the court has jurisdiction. The act of doing certain acts is treated as an offense. The doing of other acts is not criminal unless it be done “ unlawfully.” In this particular offense these distinctions are especially important The act must be “ unlawfully ” done with respect to oysters “ lawfully ” planted.

The technical requirements of criminal procedure have doubtless been much simplified and abbreviated by the Code, but we think it clear that the final record must in some way show a criminal act Beginning at the foundation we find, by section 145, that the information to the. magistrate must allege that defendant has been guilty of some designated crime. Section 151 prescribes the form of “ warrant of arrest,” and indicates what shall be its substantial form; i. e., substance, which shall state “that the crime (designating it) has been committed,” etc.

Section 152 requires that this warrant “ must also state an offense in respect to which the magistrate has authority, etc.” When the prisoner is brought before the magistrate, he must immediately inform him of the charge against him (§ 188). If the case is to be tried before the Special Sessions, “ the charge against him must be distinctly read to him ” (§ 699); i e., it is not an oral charge; it must be taken either from the information or the warrant, on some record. Then follows the plea, the same as to an indictment (§ 700). If the defendant pleads guilty, or is convicted after a trial, “the court must render judgment thereon” (§ 717), and “must make and sign a certificate of conviction ” in substantially a form briefly designating the offense (§ 721); i. e., the offense stated in the information, and necessarily stated in the warrant (supra).

If the case stood alone we should, doubtless, feel bound to hold that the record on appeal disclosed no offense; indeed, that it affirmatively excluded any offense. The. omission may have been clerical, but it was in matter of substance and not of form only. But this point cannot now be considered, because the record does not present it An appeal may be taken by the presentation of “an affidavit, showing the alleged errors complained of ” (§ 751). If the appeal is allowed under section 752, the magistrate shall make a return to all the matters stated in the affidavit, and must cause the affidavit and return to be filed, etc. It is thus obvious that the affidavit and return make up a sort of bill of exceptions, which state only so much of the proceedings as were necessary to give point to the alleged errors stated in the affidavit We find no reference in this affidavit to any informality or insufficiency in the information, the warrant, the arraignment, the reading of the charge, the judgment itself or the certificate of conviction, neither of which, in detail, appear by the return. Non-constat these documents are each full to the point We must assume that they are, or the defendant’s counsel would have made some specification in his assignment of alleged errors in his affidavit

It, therefore, remains for us only to affirm the judgment of the Sessions, and remit this record to the Special Sessions, and proceed as required by section 772.

Present, Barnard, P. J., Dykman and Pratt, JJ.

Judgment affirmed.  