I do not see that any constitutional question is involved in this case, as undoubtedly the discharge by a magistrate on a preliminary examination is not such an adjudication in defendant's favor that bars a subsequent prosecution for the offense. But as the only right of the district attorney to file an information against the appellant and prosecute it in the Court of Special Sessions (the appellant having been discharged by the magistrate) is based on section 743 of the Code of Criminal Procedure, as amended in 1904, the question is whether that section applies only to cases where the defendant has been held for trial in the Court of Special Sessions, or also includes those where the defendant has been discharged. I think it perfectly clear from subdivision 2 of the section that it is only applicable to the first class of cases. By that subdivision the district attorney, unless he files an information, is required to move for a dismissal of the prosecution of the action. It is well-settled law that a prosecution is terminated by the discharge of an examining magistrate. (Robbins v. Robbins,133 N.Y. 597.) Yet, if the construction of the statute that has been adopted below is to prevail, the district attorney is required to move for the dismissal of the prosecution which, as a matter of law, is already terminated. The application of the case cited to the point here stated is not that the discharge of the magistrate bars a *Page 257 subsequent prosecution for the offense with which a defendant is charged, for, of course, it has no such effect, but it does show that that particular prosecution is terminated and a dismissal by the district attorney under the section of the new statute would have no greater effect than the discharge by the magistrate. It would not bar a subsequent prosecution. But still more absurd results from the construction below remain. If he moves to dismiss the prosecution the district attorney must file with the clerk a written statement of his reasons for failing to prosecute. If the presumption is to prevail that the action of a magistrate in discharging a person against whom a criminal complaint is made is erroneous — and the construction referred to necessarily imports such a presumption — what is the sense of having examining magistrates or proceedings before them? Why not abolish the magistrates and save the expense incurred both by the parties and the public? Construed as limited to the cases of persons held for trial the statute is reasonable and appropriate. An information is required so that the charge to be tried in the court of Special Sessions may have a definite form and shape. While if the district attorney fails to prosecute in that court a person who has been held to await trial therein by the examining magistrate he must give his reasons for abandoning the prosecution, and in analogy to application to nolle an indictment, apply to the court for a dismissal and termination of the prosecution. But to require the district attorney to file in the court of Special Sessions the reasons why he does not prosecute each of the thousand or more petty cases in which the defendant has been discharged by the magistrate seems to me unreasonable. I am clear the legislature never intended anything of the kind.
It is said to be unreasonable to charge the legislature with the intent to deprive the district attorney of the power of prosecuting persons charged with a crime on being satisfied they had been improperly discharged by the magistrate, and it is suggested that the right which the district attorney has to *Page 258 renew the complaint before another magistrate, which he could undoubtedly do (Bishop's Crim. Law, vol. 1, § 114; Ex parteFenton, 77 Cal. 183; Gaffney v. Aldrich, 85 Mich. 138;Marston v. Jenness, 11 N.H. 156; Commonwealth v.Sullivan, 156 Mass. 487), would be inadequate or inconvenient. Nevertheless it is the only method that has obtained in this state ever since its organization and that still exists in all of the rest of the states for bringing an offender for trial in the Court of Special Sessions. Before the amendment of the Constitution in 1869 and the statutes passed in pursuance thereof giving Courts of Special Sessions exclusive jurisdiction to try certain specified misdemeanors, all offenses might be prosecuted by indictment and, as already said, discharge by an examining magistrate would be no bar to such a prosecution. But now under the statutes of the character named offenses of which the Court of Special Sessions has exclusive jurisdiction cannot be prosecuted by indictment unless on the application of the defendant the charge against him has been removed to the higher courts. (People v. Knatt, 156 N.Y. 302.) This rule obtains throughout the state except in the city of New York. Therefore, the only method that the district attorney now has, or for years has had, to prosecute petty offenders in any court is the one which is now said, for the first time, to be inadequate. In New York, however, the prosecuting officer is more fortunate. Under section 1409 of the charter he may prosecute any offense by indictment. (People v. McCarthy, 168 N.Y. 549.) Hence, if there has been any miscarriage of justice by the discharge of a prisoner by a magistrate he may be indicted for the offense charged against him.
Curiously enough this provision for requiring the dismissal by the court of a charge from which a defendant has already been discharged by the magistrate is asserted to be similar to the requirement of the consent of the court to the nolle of an indictment. I cannot imagine any case where the analogy is more completely the reverse. An analogous provision would be a law requiring the district attorney to file with the court his reasons for not submitting to a new grand jury every *Page 259 charge which a previous grand jury had ignored, and requiring the order of the court giving permission for such course. The law on the subject is the exact reverse, for when one grand jury has dismissed a bill it cannot be presented to another grand jury without the leave of the court. (Code Crim. Pro. § 270.) The presumption of the innocence of a person charged with a criminal offense has been the immemorial principle of the common law and still is it specially declared in the Code of Criminal Procedure. (§ 389.) But it seems that in the city of New York a contrary presumption of guilt is to obtain, a presumption which a discharge by the magistrate does not sufficiently rebut to save the defendant from further prosecution, unless also the district attorney states affirmative reasons why he should not be prosecuted.
It is quite possible that in this case the magistrate erred and that the appellant was guilty of the charge made against him. The remedy, however, of the prosecuting officer is very simple. The defendant can be prosecuted by indictment even now. But we are dealing not with the guilt or innocence of the appellant but with the construction of the statute declaring a principle applicable to thousands of cases.
The judgment of conviction should be reversed and appellant discharged.