I do not think that there was a “former judgment of conviction or acquittal of the crime charged ” in this case which entitled the defendant to his discharge upon the trial by the Court of Special Sessions. (Code Crim. Proc. § 332.)
The defendant was arrested by a police officer and brought before a magistrate, and was there charged with “ disturbing the peace, and did then and there push and jostle passengers and put his hands on the person of several passengers ” by the police officer who arrested him. The record before the police magistrate is very incomplete, and from the record it would be impossible to state just what disposition the magistrate made of this charge. I think the deposition of the police officer was of itself a sufficient charge of a misdemeanor under section 720 of the Penal Law. That section provides that “Any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place or with the passengers of any public stage, railroad car, ferry boat, or other public conveyance, or who shall disturb or offend the occupants of such- stage, car, boat or conveyance, by any disorderly act, language or display, although such act, conduct or display may not amount to an assault or battery, shall be deemed guilty of a misdemeanor.” It is true that the deposition of the police officer did not mention this section or *876expressly allege that the defendant was guilty of a. crime under it, but it alleged facts which, if true,'disclosed a violation of this section. When the defendant was brought before the police magistrate it was the duty of the magistrate to proceed to examine the case unless the defendant waived examination or elected to. give bail. (Code Grim. Proc. § 190.) This the magistrate proceeded to do. There is nothing in the record to show that the magistrate proceeded against the defendant under section 1458 of the Consolidation Act (Laws of 1882, chap. 410) rather than under section 720 of the Penal Law. The police officer who made the arrest was examined by the magistrate, who directed him to make a new complaint, which expressly charged the defendant with a violation of the provisions of section 720 of the Penal Law, and in that new complaint he went more fully into the facts preceding the arrest, and upon this new complaint the defendant was held for trial at Special Sessions. There was no acquittal of a charge made under the section of the Consolidation Act, but a charge was made against the defendant which would be a violation, both of the section of the Consolidation Act and section 720 of the Penal Law. The police officer says that after the new charge was made and the defendant was committed for trial the magistrate said something about his.being discharged under the first complaint, but, as I read the record, the defendant was never placed upon trial for a violation of the Consolidation Act, but was simply charged with an offense for which he might be punished under either the Consolidation Act or the Penal Law. The hearing before the magistrate, so far as appears, was the examination which any person arrested with of without a warrant is eútitled to, and the direction to the police officer to prepare a new charge was simply a direction to obtain a more specific statement of the facts Under section 720 of the Penal Law. ,
I think, therefore, there was no trial of the defendant for any offense, but an examination by the magistrate of a person arrested without a warrant for an offense which, was a violation of the Penal- Law. Certainly the mere direction of the magistrate to make a fuller complaint, or to prepare a new complaint setting forth the facts in more detail cannot *877be said to be an acquittal of the charge preferred against the defendant. I think the plea of a former acquittal is not sustained and that the court below was justified in tiying the defendant.
There was error in the admission of testimony which the district attorney concedes requires a new trial.
I think, therefore, the judgment appealed from must be reversed and a new trial ordered.
Judgment reversed and defendant discharged. Order to be settled on notice.