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Misc.]

County Court, Erie County, April, 1921.

66

arraigned she pleaded not guilty" and was duly informed of all her rights under the law, and was also represented by able counsel, who then demanded a jury trial, which was denied by the court. The trial then proceeded and the defendant was found guilty.

From this judgment of conviction she has appealed. As the evidence offered leaves no doubt as to her guilt, the only question left for consideration is whether or not the demand for a trial by jury was properly denied.

As the power to punish vagrants under the Code of Criminal Procedure was greatly enlarged by chapter 502 of the Laws of 1919, and as it is now possible under section 891A to impose a sentence, not exceeding three years, to a correctional institution, or to a jail, penitentiary or other penal institution for a period not to exceed one year, it is urged that as the punishment now provided is so much more severe than under the old provisions, the former decisions construing this law are no longer applicable, and that the defendant should now be entitled to a jury trial as a matter of right.

The constitutional provision for a jury trial (Art. 1, § 2) is: "The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; This section has reference to a trial by a common law jury of twelve men (People v. Cosmo, 205 N. Y. 91; People v. Special Sessions, 74 id. 406) and has been in force since 1777. Courts of Special Sessions have existed since 1744 to the present time, but no jury was permitted in these courts until 1824, when the legislature provided for a jury of six (People v. Justices, 74 N. Y. 406), so that any right that a defendant may have to a jury trial in a court of Special Sessions is statutory and not constitutional, and hence in the absence of statutory provisions therefor, the defendant is not entitled to a jury trial as a matter of right.

County Court, Erie County, April, 1921. [Vol. 115.

The words "heretofore used " refer to the time which antedates the adoption of the original Constitution when the common law was in force (People v. Cosmo, 205 N. Y. 91, citing Duffy v. People, 6 Hill, 75), and we find (see Colonial Act of Sept. 1, 1744) that in 1744 provisions were made for the summary trial, without jury, of all offenses below the degree of grand larceny. Such persons were classed as disorderly persons or vagrants. In People v. Putnam, 3 Park. Cr. Rep. 386, Judge Pratt says: "But there was always a class of persons or offenders, who, from the commencement of the government, have been accustomed to be dealt with summarily before inferior magistrates, and to whom the right of trial by jury has not been granted. These were classed under the heads of vagrants and disorderly persons.' In People v. McCarthy, 45 How. Pr. 97, Judge Davis said: "That the legislature have power to enlarge the class of persons to be affected by laws against disorderly persons and to be summarily tried by the magistrates of the state, seems to be well settled by the authorities."

The only statutory provision that I find relating to jury trials is section 702 of the Code of Criminal Procedure, which reads: "Before the court hears any testimony upon the trial, the defendant may demand a trial by jury." The application of this section is limited to crimes and misdemeanors created and defined by the Penal Law (People v. Van Houten, 13 Misc. Rep. 408; affd., 91 Hun, 638), and, therefore, the appellant has no right to a jury trial under this statutory provision.

Violations of section 887 of the Code of Criminal Procedure are not crimes or misdemeanors but only quasi criminal or statutory offenses to be summarily dealt with. People v. O'Neill, 117 App. Div. 826;

Misc.] Court of Gen. Sessions, N. Y. County, April, 1921.

Frank v. Keeper, etc., 38 Misc. Rep. 233, 240; Forster v. Warden, 39 id. 700, 702.

As it has already been decided (People v. Davis, 143 App. Div. 579) that a law authorizing magistrates to commit women, within certain age limits, to the Bedford Reformatory on conviction of being common prostitutes, is not unconstitutional in that it authorizes such persons to be restrained of liberty for a period not exceeding three years without provision for a trial by a common-law jury, and as all the cases hold that the right to a jury trial before a magistrate is statutory and not constitutional, and as I find no statutory provisions compelling a magistrate to grant a jury trial in the case at bar, it follows that the denial of a jury trial in the city of Buffalo was right and the judgment of conviction is affirmed.

Judgment affirmed.

THE PEOPLE OF THE STATE OF NEW YORK v. AUGUSTUS Drum Porter, Defendant.

(Court of General Sessions of the Peace, in and for the County of New York, April, 1921.)

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Where an indictment is found solely upon the uncorroborated testimony of police officers, who are to be deemed the accomplices of the defendant in the crimes charged against him, a motion to dismiss the indictment will be granted with leave to resubmit the case to the grand jury.

MOTION to set aside indictment.

Martin W. Littleton, for defendant.

Edward Swann, district attorney; Felix C. Benvenga, assistant district attorney, for people.

Court of Gen. Sessions, N. Y. County, April, 1921. [Vol. 115.

ROSALSKY, J. On March 22, 1920, the defendant was indicted by the grand jury upon three counts, the first and second of which allege that the defendant committed the crime of wilfully omitting to perform a public duty enjoined by law upon him as a public officer (Penal Law, § 1841); and the third count alleges that the defendant committed the crime of attempting, by means of a threat, to deter and prevent an executive officer from performing a duty imposed by law upon such officer. Penal Law, § 1824. On consent of the district attorney, the defendant was furnished with a copy of the minutes of the grand jury, and he now moves to set aside the indictment, principally on the ground that it was founded upon the uncorroborated testimony of accomplices. Code Crim. Pro., § 399.

It is necessary briefly to refer to some of the proof presented to the grand jury with a view to determining whether the claim of the defendant warrants the deduction that police officers Wheelwright and Sorger are accomplices, and if so, whether the record is barren of proof tending to corroborate their testimony. Police officers Wheelwright and Sorger, on the night of November 12, 1919, went to the premises 324 West Ninety-sixth street, in the borough of Manhattan, county of New York, for the purpose of ascertaining whether one Adele Goodell conducted an apartment on the third floor of said premises in a disorderly manner. They secreted themselves on the landing between the third and fourth floors of this building and kept the apartment of the Goodell woman under observation and at about eleven o'clock that night they saw the defendant and a woman enter the Goodell apartment. The police effected an entrance into the apartment and immediately proceeded to the second bedroom; they forced the door and entered the room, in which they found the defendant dressed in his under

Misc.] Court of Gen. Sessions, N. Y. County, April, 1921.

wear and wearing his socks, and the woman was entirely nude, lying in bed. Police Officer Wheelwright told the defendant that he was going to place the woman who was with him in the room under arrest. The defendant told officer Wheelwright that he wanted to speak to him, and they both went into an adjoining room, while police officer Sorger remained in the room with the woman. The defendant then told Wheelwright that he was Third Deputy Police Commissioner Porter and showed his credentials. Officer Wheelwright told him that he was sorry but that he must arrest the woman, and upon being told by the defendant not to do so, officer Wheelwright conferred with officer Sorger and told him who the defendant was; whereupon these officers permitted the defendant and the woman to leave the premises without arresting her. The police, however, arrested the Goodell woman on a charge of keeping a disorderly house. It was stated by both sides that she was tried in the Court of Special Sessions and acquitted of this charge.

From the evidence it is clear that the only reasonable conclusion to be drawn is that police officers Wheelwright and Sorger conspired with the defendant not to arrest the woman referred to in the indictment as Jane Doe. In the criminal arrangement to aid the defendant in liberating this woman, these officers must be condemned as accomplices as a matter of law. Their misconduct brings them within the generally accepted test that " To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an accessory before the fact. To warrant such a conviction the one accused must have taken part in the perpetration of, or preparation for, the crime, with intent to assist in the crime. Every act which may have a tendency to assist in the perpetra

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