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FIRST DEPARTMENT, JULY TERM, 1903.

(Vol. 86.

ing the giving of this testimony, pertinent and material to the issue, counsel for appellant interrupted with the remark, apparently addressed to the court, “ Now, we have the same objection to all of this line of testimony," to which the court replied, “ Certainly, and I make the same ruling;” and counsel for appellant excepted. There was no further objection or exception to the evidence of the conversation.

Even though some of this evidence may not have been competent, we think the court did not err in overruling the objections. The question, as has been observed, called for the conversation concerning the crime charged in the indictment. If the witness, iu answer to that proper question, in narrating the conversation, stated facts that were incompetent and inadmissible against the defendant on account of their showing the commission of other similar crimes, the appellant should have requested the court to instruct the witness to state only that part of the conversation which related to the commission of the crime in question, or, as the evidence of other similar crimes was received, should have moved to strike it out and have the jury instructed to disregard it. This would have presented the question whether it was essential to a proper understanding of the evidence relating to the defendant's express and implied admissions of the crime for which he was on trial that the entire conversation should be received.

There is no doubt as to the defendant's guilt, and we find no exception presenting reversible error. It follows, therefore, that the judgment and order should be affirmed.

Van Brunt, P. J., INGRAHAM and Hatch, JJ., concurred; PatTERSON, J., concurred in result.

Judgment and order affirmed.

App. Div.]

FIRST DEPARTMENT, JULY TERM, 1903.

THE PEOPLE OF THE STATE OF New York ex rel. ABRAHAM SMITH,

Respondent, v. John E. VAN DE CARR, Warden of the City Prison, and P. T. Barlow, City Magistrate, Appellants.

New York city magistrate - jurisdiction of disorderly conduct legislative power

to make certain conduct an offense in New York city but not elsewhere description of the offense in a warrant of commitment misdemeanor under Penal Code, $ 675 office of a writ of certiorari as compared with that of a writ of habeas corpus matters essential to the magistrate's jurisdiction - arrest without warrant for an offense committed in the officer's presence.

A magistrate of the city of New York has no jurisdiction to try a person accused of a felony or a misdemeanor as those terms are defined in sections 4, 5 and 6

of the Penal Code. Section 1458 of the Consolidation Act (Laws of 1882, chap. 410), which declares that any person in the city and county of New York who commits any of the offenses defined in that section “shall be deemed guilty of disorderly conduct that tends to a breach of the peace,” is still in force, and the police magistrates. of the city of New York have jurisdiction to try persons accused of such

offenses. It was entirely competent for the Legislature to declare the conduct defined in

the section to be an offense in the city of New York and to provide for its punishment even though it would not be a penal offense elsewhere, or would

be a crime of a higher degree if committed elsewhere. A person convicted under subdivision 3 of such section is not entitled to be dis.

charged on a writ of habeas corpus or a writ of certiorari, because the offense.

which he committed was also a misdemeanor under section 675 of the Penal Code. A description of the offense, contained in a warrant of commitment under that

section of the Consolidation Act, viz., “disorderly conduct, tending to a breach of the peace,” is sufficient, and it is not essential to the validity of the commitment that the subdivision under which the conviction was had should be specified or that the facts should be set up. Quære, whether“ disorderly conduct” would be a sufficient description of the

offense. The writ of certiorari as a writ of review in criminal cases has been abolished,

and now the only method of review in a criminal case is by appeal. A writ of certiorari to inquire into the cause of the detention of the relator is not, at least in a case of conviction, any more extensive, nor does it afford any greater right or remedy than the writ of habeas corpus. The writ was designed to reach only those cases where the production of the body was unnecessary to the decision of the question to be presented, and was not intended to bring the

evidence up for review. In cases of conviction the inquiry both upon the writ of habeas corpus and the

writ of certiorari is whether the magistrate who issued the warrant of commitment had jurisdiction of the offense, of the relator and to impose the

FIRST DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

sentence and whether such sentence has expired; the decision may not be

reviewed. All that is essential to the jurisdiction of the magistrate is that the relator shall

be arraigned before him and apprised of the nature of the offense with which

he is charged, and be afforded an opportunity to defend, and be then duly tried. A person who commits a criminal offense in the presence of a police officer may

be arrested without a warrant, and no formal information need be filed before he is arraigned.

APPEAL by The People of the State of New York * from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of March, 1903, sustaining writs of habeas corpus and certiorari theretofore allowed in behalf of the relator, and discharging him from the custody of the warden of the city prison.

TIenry G. Gray, for the appellants.

Meyer London, for the respondent. LAUGHLIN, J.:

The return to the writ of habeas corpus shows that the relator was held by the warden of the city prison under a commitment of one of the magistrates of the city of New York, bearing date the 18th day of March, 1903, which recites that the relator was charged on the oath of one John O'Rourke with having been on the 16th day of March, 1903, at the city of New York, in the county of New York, “guilty of disorderly conduct, tending to a breach of the peace," and that he was duly convicted of that offense before said magistrate upon competent testimony, and sentenced to the workhouse in the city and county of New York for the term of six months pursuant to the provisions of section 707 of the Greater New York charter, and the warden was commanded to receive and detain the relator in the workhouse for the term of six months from the date of the commitment or until he should be discharged pursuant to law.

The relator contends that the city magistrates have no jurisdiction to try a party accused of a felony or misdemeanor as defined in sections 4, 5 and 6 of the Penal Code. This contention appears to be sustained by the provisions of the statute creating that court (Laws of 1895, chap. 601, $ 14; Greater N. Y. Charter [Laws of 1897,

* Sic. See Code of Civil Procedure, $ 2059.

App. Div.]

First DEPARTMENT, JULY TERM, 1903.

clap. 378), S 1406, as amd. by Laws of 1901, chap. 466, § 1409. See People v. Patterson, 38 Misc. Rep. 79), and we do not understand that it is controverted by counsel for the People. The relator contends that the charge against him constituted a violation of section 675 of the Penal Code, which provides that “any person who shall by any offensive or disorderly act or language, annoy or interfere with any person or persons in any place,” shall be guilty of a misdemeanor; but this is not the statute under which the relator was tried and convicted and for this reason as well as upon the ground that the magistrate did not have jurisdiction the conviction could not be sustained thereunder. The relator was convicted under 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.”

It clearly appears and is uncontroverted that the city magistrates have jurisdiction over the offenses specified in this section, and the section has been continued in force. (Greater N. Y. Charter, $ 1610, as amd. by Laws of 1901, chap. 466; People ex rel. Frank v. Davis, 80 App. Div. 448.)

It was entirely competent for the Legislature to declare such conduct in the city of New York an offense and to provide for its punishment, even though it would not be a penal offense elsewhere, or would be a crime of a higher degree if committed elsewhere. The description of the offense contained in the warrant of commitment, viz., " disorderly conduct, tending to a breach of the peace," was sufficient, and it was not necessary to the validity of the commitment either that the subdivision of the section under which the conviction was had should be specified or that the facts should be set up. (People ex rel. Frank v. Davis, supra; People v. Johnson, 110 N. Y. 141; People ex rel. Allen v. Ilagan, 170 id. 46; Gray's Case, 11 Abb. Pr. 56; Case of the Twelve Commitments, 19 id. 394, 401.) It is not important for us to determine whether,

FIRST DEPARTMENT, JULY TERM, 1903.

(Vol. 86

as contended by counsel for appellants, “ disorderly conduct” would be a sufficient designation of the offense, for both in the warrant of commitment and in the return of the magistrate it appears that the relator was convicted of " disorderly conduct that tends to a breach of the peace.”

The writ of certiorari as a writ of review in criminal cases has been abolished, and now the only method of review in a criminal case is by appeal. (Code Crim. Proc. $ 515; People ex rel. Taylor v. Forbes, 143 N. Y. 219; Code Civ. Proc. § 2148.) In the case of a conviction, at least, the writ of certiorari to inquire into the detention of the relator, a remedy incorporated into the Code of Civil Procedure with the habeas corpus provisions ($ 2015 et seq.), is not more extensive and affords no greater right or remedy than the writ of habeas corpus, and was designed to reach only those cases where the production of the body was unnecessary to the decision of the question to be presented ; and it is not the province of this writ of certiorari to bring up the evidence for review. (People ex rel. Bungart v. ells, 57 App. Div. 140, 151; People ex rel. Taylor v. Seaman, 8 Misc. Rep. 152; People ex rel. Danziger v. P. E. Ilouse of Mercy, 128 X. Y. 180, 184.) A practice has sprung up in this department of issuing both writs in cases of detention before or without conviction. This is acquiesced in on the ground of convenience, in having the magistrate certify the information or evidence upon which the relatur has been held and which the court in such cases examines to see if there is any evidence of guilt, rather than because any warrant for such practice can be found in the Code of Civil Procedure. In cases of conviction, however, the inquiry, both upon the writ of habeas corpus and upon a writ of certiorari to inquire into the detention, is whether the magistrate who issued the warrant of commitment had jurisdiction of the offense of the relator and to impose the sentence, and whether it had expired, but the decision may not be reviewed. (Code Civ. Proc. $S 2010, 2019, 2032; People ex rel. Tweed v. Liscomb, 60 N. Y. 570); People ex rel. Danziger v. P. E. IIouse of Mercy, supra.) If the magistrate had jurisdiction of the subject-matter and the warrant of commitment is valid in forin, reciting the jurisdictional facts, it has been held by the Court of Appeals that the burden is upon the relator to impeach its validity

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