Defendant was tried before a justice of the peace of the town of Arkwright, Chautauqua county, and a jury on the charge of malicious mischief in violation of section 1425 of the Penal Law, convicted and sentenced. He appealed to the County Court, where the judgment of conviction was affirmed. The case reaches us by permission of a judge of this court granted under the provisions of subdivision 3 of section 520 of the Code of Criminal Procedure.
In the return of the justice on the appeal to County Court on January 31, 1939, the justice states: "That none of the evidence was written down either by the Court or anyone else in his behalf and that all that was written during the trial was an objection taken by the defendant's counsel which read as follows: Object to sworn statement, asking about lying about statement." A further return was ordered and thereupon filed on April 20, 1939, in which the justice attempted to state from recollection the names of the witnesses sworn and the facts to which they testified. It is the duty of justices "to keep, or have kept under their direction, minutes of the testimony taken upon trials, to the end that their determinations as to the facts may be reviewed upon appeal." (People v. Giles, 152 N.Y. 136, 140. See, also,People v. Schenkel, 256 N.Y. 539.) The returns here fail to state sufficiently the evidence upon which the conviction was obtained. The question was adequately raised in the court below. A further return could not correct the defect.
The judgments should be reversed and a new trial ordered.
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur; O'BRIEN, J., taking no part.
Judgments reversed, etc. *Page 226