People v. Goldfarb

Laughlin, J.:

It is conceded by the learned assistant district attorney that errors were committed on the trial of this case, which require a reversal; but in the view we take of the case we do not deem it necessary to examine the alleged errors with respect to the reception of evidence. Counsel for the defendant insisted on the trial that his client had been formerly put in jeopardy on this same charge and he pleaded a former acquittal in bar, and on proof of ,the facts set forth in the statement of facts he contended that by virtue of the provisions of section 6 of article 1 of the Constitution, he was entitled to have the information dismissed. That plea was overruled, but at the close of the evidence and after conviction he moved on the same facts in arrest of judgment. Counsel for the respective parties join in requesting that this court decide the questions arising on these contentions, for if either of them be well founded the defendant should be discharged.

It appears by the statement of facts that the defendant, having been arrested without a warrant, was duly charged by the officer who made the arrest, before a magistrate having jurisdiction to try the offense, with disorderly conduct, which was a violation of the provisions of 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.”

He was duly arraigned on that charge, employed counsel to defend him, and entered upon the trial, and before hearing all the evidence the magistrate directed that a new complaint be made and that he be discharged. The new complaint was on the same facts, but it charged a violation of section 720 of the Penal Law under which the magistrate was without jurisdiction to try the defendant, whereas he had exclusive jurisdiction under the original charge, but on conviction thereunder he could not receive as severe a sentence. The fact that the magistrate did not intend to acquit the defendant is of no importance. Undoubtedly the object of the magistrate in directing that'the officer charge the defendant with a violation of section 720 of the Penal Law was to have the case taken to the Court of Special Sessions, where a greater sentence might be imposed if he were convicted.

It is well settled that where the court directs an acquittal, no matter how erroneously, the defendant cannot be subsequently tried on the same charge. (People ex rel. Stabile v. Warden of City Prison, 139 App. Div. 488; affd., 202 N. Y. 138; Kepner v. United States, 198 U. S. 100, 130; People v. Miner, 144 Ill. 308; People v. Barrett, 2 Caines, 304. See, also, People v. Goodwin, 18 Johns. 187.) The People were at liberty to rest on such evidence as they saw fit to offer, and the defendant was under no-obligation to offer any evidence. The fact, therefore, that only one witness was sworn is of no importance. I am of opinion that it is the well-settled rule that where a person is arraigned on a criminal charge, and required to go to trial before a court of competent jurisdiction, unless the trial is terminated by the disagreement of the jury, or their discharge pursuant to law, or by the consent of the accused, or through extreme or absolute necessity, as by illness or death, he has been put in jeopardy and cannot be prosecuted again in the same or another court on the same charge; and the discontinuance of the prosecution is equivalent to a discharge, for the constitutional protection grants the defendant immunity against a second trial. (People ex rel. Stabile v. Warden ,of City Prison, supra; People v. Goodwin, supra; People v. Barrett, supra; Shepherd v. People, 25 N. Y. 406; Kepner v. United States, supra.) I am of opinion that the defendant was quite as much in jeopardy before the magistrate in the case at bar as if the prosecution had continued until the close of the evidence, and there had been a motion made for his acquittal, which was granted.

It seems, however, that the defendant’s plea in bar was properly overruled, for the reason that, while what occurred •was in effect an acquittal, there was no formal judgment of acquittal. (Code Grim. Proc. § 332; People ex rel. Stabile v. Warden of City Prison, supra; People v. Goodwin, supra.) Doubtless the defendant would have been. entitled to a discharge on a writ of habeas corpus, on being held to answer the second charge (People ex rel. Stabile v. Warden of City Prison, supra); but' this was not his only remedy, and he was at liberty after conviction to move in arrest of judgment on these facts, as he did. (People v. Goodwin, supra; People v. Barrett, supra; People ex rel. Stabile v. Warden of City Prison, supra.)

Without, therefore, considering whether any other error was committed on the trial, I am of opinion that the defendant’s motion in arrest of judgment should have been granted, and he should have been thereupon discharged from custody, and this court should now do what the trial court should have done.

The motion in arrest of judgment, therefore, is granted, and the sentence of the court is set aside, and the defendant discharged.

Scott, Miller and Dowling, JJ., concurred; Ingraham, P. J., dissented in part.