People v. Scherno

Per Curiam : An information was presented to the city judge of the city of Plattsburgh charging that on the 22d day of July, 1909, at said city, the defendants committed ■ “ the crime of misdemeanor, to-wit, in being a disorderly person as defined by § 139 of chap'. 269, Laws of 1902, in that at the said time and place the said defts. did keep a disorderly house ” and so concertedly kept and maintained the same for one year prior thereto. A warrant was issued and the defendants were arraigned and advised of ’their rights to have counsel and to have an examination and to plead guilty or not guilty, and were also informed that they had the right to a jury trial. The defendants insisted that the court had no jurisdiction to try the offense of which they were charged, and stated that they desired to waive examination and to give bail to. await the action of the grand jury. The court held that he had jurisdiction to try the offense and that the defendants were not entitled to give bail to await the action of the grand' jury, and told the defendants that they might have a jury impaneled if they so desired. A jury was impaneled and it rendered a verdict of guilty, and the defendants were eacli sentenced to the Albany County Penitentiary for the period of three months, and in addition to pay a fine of fifty dollars and stand committed until paid. After such conviction and sentence the attorney for the defendants presented an affidavit to a justice of this court, as prescribed by sections 749 to 763 of the Code of Criminal Procedure, for an allowance of an appeal to the County Court of Clinton "county, which was granted, and on such appeal the conviction was affirmed, and the defendants now appeal to this court. The affidavit upon which the appeal was allowed states that the defendants were convicted of the crime of misdemeanor, to wit, being disorderly persons in that they and each of them did within said .city of Plattsburgh keep and maintain a disorderly house, and the errors complained of are that the defendants were not permitted [97] to waive examination and give bail to appear before the grand jury of the comity, because the court had no jurisdiction to try the offense of which they were charged, the same being triable, if at all, after indictment by a common-law jury of twelve men ; and, further, that the district attorney who appeared in behalf of the prosecution was permitted in summing up to go outside the record and make statements prejudicial to the defendants. It is the settled practice that on appeals from convictions in Courts of Special Sessions and by magistrates and police justices only such errors will be considered as are specified in the affidavit upon which the appeal is allowed. (People v. Jewett, 69 Hun, 550; People v. McGann, 43 id. 55 ; People ex rel. Baker v. Beatty, 39 id. 476.) The remarks made by the district attorney in summing up to the jury were not of such a character as to require a reversal of the judgment and conviction. The defendants were not entitled to waive examination and give bail to appear before the grand jury on the charge of committing the misdemeanor of being disorderly persons in the city of Plattsburgh, or to have such charge made against them presented by indictment and tried by a common-law jury of twelve men. The charter of the city of Plattsburgh (Laws of 1902, chap. 269) creates a city judge and establishes a City Court. Sections 138 and 139 define the jurisdiction of the city judge in criminal matters. Section 139 contains a long list of acts prohibited within the city of Plattsburgh, such as keeping disorderly houses, public intoxication, riotous conduct, loitering, disturbance of public meetings, defacing buildings or city property, horse racing and the like, the doing of which is declared to make one a disorderly person. The sebtion concludes in the following language : “ Every person found guilty of being a disorderly person as aforesaid, and every person guilty of any act or acts making such person a disorderly person as herein declared, shall be guilty of a misdemeanor, and on conviction thereof punished as in this act provided.” The section further provides that when any person charged or complained against as a disorderly person shall be arrested or brought before the city judge, he “ shall proceed forthwith to hear, try and determine the complaint or [98] charge on which such person is arrested,” and on conviction the offender can he punished by a tine not exceeding fifty dollars, or by imprisonment in the county jail of Clinton county not exceeding six months, or by both such fine and imprisonment. The affidavits upon which the appeal was allowed do not complain of the manner of trial of the defendants or allege that it was error for the city judge to organize a Court of Special Sessions with a jury of six men to try the defendants. The only ground of lack of jurisdiction set forth is that there was no jurisdiction at all, because the defendants were entitled to waive examination and give bail to appear before the grand jury. This they were manifestly not entitled to do. The affidavit upon which the appeal was allowed not setting forth any errors requiring a reversal of the conviction, it follows that it must be affirmed. All concurred, except Houghton, J., dissenting, in opinion.