People v. Harber

Ingraham, J.:

The record states that'the defendant was, on February 16, 1901, arrested and. charged with the crime of larceny from the person ; that on February seventeenth he was arraigned before a city magistrate ; that he pleaded hot guilty and was held for trial at a Court of Special Sessions; that he was arraigned before the Court of Special Sessions and discharged on his own recognizance; that oh April 5, 1904, he was tried for the crime before the Children’s. Part, of the Court of Special- Sessions and was convicted, and after a motion to set aside the judgment arid for a new trial and for an arrest of judgment and for a trial by a full bench was made, he was committed to the house of refuge. When the case came on for trial before , the Children’s Part of the Court'of Special Sessions, counsel for the defendant stated that if • the court found when he was first arrested that the defendant was too young to be tried he did not think that -the court could reopen the case, whereupon the court stated that the defendant was discharged upon his own recognizance, and subsequently brought back for trial. No other ruling was made arid no exception was taken. The defendant -then pleaded not guilty. The evidence for the prosecution having been taken', there was no evidence offered for the deferidant. The court found the defendant guilty. By the judgment it appeared that on- February 19, 1901,- before ■ the Court of Special ■ Sessions-the defendant was discharged on his own recognizance ; that on April 5, Í904, the . order discharging the defendant was revoked and the defendant was placed on trial, and on the 5th 'of April/1904, was convicted and committed fo the house of refuge. There is no. other record as to the proceeding before the Court of Special Sessions when the defendant was first arrested and arraigned before it. I think we must assume from this record that the defendant was not tried when first arraigned in 1901 and that no disposition was then made of the charge against him. A discharge upon a prisoner’s own recognizance is nothing more .than an admission to bail without surety. There is nothing to show that there was any investigation as to the guilt or innocence of the defendant or any adjudication that he should not be tried for the crime charged. If, upon his being brought before the court for trial, for any reason he was not tried and was then admitted to bail, there was certainly nothing to prevent the court before whom the charge was pending from calling upon the prisoner at any time to appear for trial and in case of his failure to.appear rearresting him and then disposing of the charge against him. When the defendant was brought before the Court of Special Sessions consisting of three judges the order discharging him upon his own recognizance was revoked; but assuming that the court had no jurisdiction to revoke that order, the defendant was then before the court charged with the crime, and it seems to me that the court had jurisdiction to try him and render judgment if his guilt was pi'oved. Assuming that the court had no authority to discharge the prisoner upon his own recognizance, the effect of that order was not an acquittal. There is nothing in the record to show that, when the defendant was discharged upon his own recognizance, the case was not adjourned to a subsequent day; nor did the prisoner make such a claim when he was arraigned for trial.

To reverse this judgment we must assume irregularity which was neither claimed nor proved before the trial court, and as the defendant was proved guilty of the charge, I think the conviction should be affirmed.

Van Brunt, P. J., and Patterson, J., concurred; Laughlin and Hatch, JJ., dissented.