The defendant was convicted by a magistrate acting as a Court of Special Sessions, of the crime of petit larceny. When arrested and brought before the magistrate, and being apprised of the offence charged, he pleaded not guilty, and his plea was duly entered in the minutes of the court. He then applied for an adjournment of the case, and his application was granted for a period of two days, at which time a further adjournment was granted him until the following day. At this time, on his appearance before the court, he stated that he would waive an examination and offered bail for his appearance to answer any indictment to be found against him by the grand jury. The magistrate returns as follows : “ This I denied, under chajp. 390 of the Laws of 1879.” A trial was then had, and he was convicted of the offence charged against him, and sentence therefor was pronounced. The conviction and sentence was affirmed by the Court of Sessions of Albany county, and thereupon the case was brought into this court for review on certiorari..
Admitting that the defendant had the right, if exercised in due time, to elect to put in bail, and thus avoid a trial before the magistrate, which right wjll be hereafter considered, that officer
But the decision was not put on that ground. The magistrate held, and as we think correctly, that he was barred of the right to offer bail to answer an indictment by reason of chapter 390 of the Laws of 1879. The decision was put upon the validity and binding force of this act. By this law it is declared that Courts of Special Sessions shall have exclusive jurisdiction in the first instance to hear and determine certain crimes and offences, and among them. “ charges for petit larceny not charged as a second offence.” It is very manifest that the right of a party to give bail to answer an indictment in cases like this in hand was intended to be, and in fact was, by the language of the act, superseded and wholly abolished. The purpose of the law was to compel persons charged with those minor offences specified in it, to submit to a trial without indictment. So exclusive jurisdiction was given to the Court of Special Sessions to try and determine those offences. The words, “inthe first instance,” were doubtless inserted in order to defeat a possible construction, that the trial should be held to be final — that is, without a right of review on certiorari or otherwise. But it is insisted that this law of 1879 is void because in conflict with section 2 of article 1 of the State constitution, which declares that “the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” It has been often held that the jury here referred to was a common law jury of twelve men ; therefore, it was further held in many cases that, according to the constitution as it stood prior to 1870, all statutes which attempted to confer exclusive jurisdiction upon Courts of Special Sessions were inoperative and void, because in conflict with the constitutional provision above cited. But a new and additional authority was conferred upon the Legislature by an amendment of the constitution which took effect on the 1st of January, 1870. By this new provision (§ 26 of art. 6) it is
Thus read and construed both provisions may have such effect as was very plainly intended by their adoption. As was said in the People v. Rawson (61 Barb., 619, p. 628), “this provision” (§ 26, art. 1), “ must be held to operate as an amendment to the constitution of 1846; as it stood when the decision was made in the People v. Toynbee (supra), and it must have been so designed by the electors who adopted the new judiciary article; ” and further, “ the provision was doubtless designed to remedy a defect in our criminal jurisprudence * * * in reference to the trial and punishment of offences against the law of the grade of misdemeanors ; ” and still further, “ of course it was not proposed by the convention, nor adopted by the electors, as a mere idle form of words. It was designed to effect some change, and to accomplish some definite object and purpose. This object is I think very plain. It was to enable the Legislature in its ' discretion to confer upon fhese inferior ¿oürts just that unqualified and exclusive jurisdiction in tho lower grade of offences which it -was held not to possess,” by the 'decisions of the courts theretofore pronounced.
But we are not satisfied that the conviction was' right on the facts proved. It appears that the defendant, with others, was drinking in the complainant’s saloon, when a dollar bill was paid to the bar-tender by one of the party.. The bar-tender gave back the change to the person who made payment, and put the bill into the money-drawer, leaving it open. He then stooped down to take a bottle from under the counter, when the defendant reached over and took the bill. His action was in no respect secret; nor does it appear that he attempted to hide the bill from observation ; and he at once returned it with the remark, then permitted to pass undisputed, that his action was in fun. The defendant on the trial swore that he took the bill in fun, and all the circumstances surrounding the act tend to support his assertion. Similar acts of taking money or small articles of property from asso
I am unable to assent m that part of the foregoing opinion which holds chapter 390 of the Laws of 1879 to be constitutional, so far as it deprives an accused of the right of trial by a common law jury.
It is not disputed that the right secured by article 1, section 2 of the constitution is a right to be tried by a common law jury. This article of the constitution, being that which touches personal rights, must be maintained. Other parts must yield to this, if necessary.
Where the constitution permits in article 6, section 26, jurisdiction of misdemeanors to -be given to Courts of Special Sessions, this must be construed so as not to take away the right of the accused in such courts to be tried by a common law jury, in cases where such trial was used at the adoption of the constitution. And unless the Legislature, while giving these courts ;ur-isdiction of offences, provide also for a common law jury therein, I think that the legislation is unconstitutional. I do not see why such courts might not, by proper legislation, be authorized to summon a common law jury, and thus secure to the accused his constitutional rights.
Conviction by police justice and affirmance by Court of Sessions reversed.