The sun., 1897-06-04
MUST HAVE TRIAL BY JURY.
RAINES LAW DOESN'T BAR IT, JUS
TICE ANDREWS sAHS.
Or. ir II Does, nc IL. SO Far. void-SIust ne
Read In Connection with Other statutea 20
Avoid That Conclusion or Even TO Permit
OF Excise Arrents without Warrant.

Avoid That Conclusion Even TO Permit
OF Excise Arrests without Warrant.
Justice Andrews OF tho Supreme Court has
been studying the Liquor Tax law and has writ
ten some interesting conclusions about it, The
cases before him were those OF Ethel Gerard, ac-
cused OF selling liquor without q tax certificate,
and OF Bernard Mcmahon. accused OF selling in
prohibited hours. They were held for trial In
Special Sessions. They demanded q jury trial.
Justice Andrews says they must haveit.
He refers to the Laws Of 1895, chapter COL,
which says that when person held for trial In
the Special Sessions for n misdemeanor makes
an affidavit OF innocence any Judge of the Gen
eral Sessions must on the prisoners application
make an order transferring the case to the Cen
eral Sessions for jury trial This law Justice
Andrews says is not repealed and is not neccs.
sarily inconsistent with the Liquor Tax law. He
says:
"It is true that tho Liquor Tax law tsection
S5Al declares that aftor person has been held
to bail or committed to prison by Magistrate
all further and subsequent proceedings shall
be prosecuted in the Court of Special Sessions;
but this provision is limited and controlled by
the further declaration that such prosecution
is to be in the manner prescribed by law for
the trial OF misdemeanors committed in
the city and county Of New York; and
the manner prescribed by the statute
above referred to for tho trial OF misdcmeanors
committed In the city and county of New York Is
that the Court OF Special Sessions shall have ex-
elusive jurisdiction to hear and determine all
charges Of misdemeanors without a jury. unless
before the commencement of the trial an iniict-
mcnt is found or unless the case is removed to
the General Sessions by Judges order. which
he has no discretion to refuse II tho party prose-
cuted presents affidavit declaring that he is
innocent.
ut may be fairly presumed that tho object OF
the Legislature in adopting tho amendment
contained in section 35A of the Liquor Tax law
was not to deprive persons arrested in the city
of New York of the right to II trial by jury.
which is given to defendants SO prosecuted In
every other part of the State. but to relieve the
speedy trial without jury, "f'u Of ali persons per @
prosecuted for violation OF the Liquor Tax law
who should not elect to exercise the right Of re-
moyal to the higher court given by the said act
ITO construe section 35A as dcpriving per-
sons arrested for q violation of this statute in
fore, to impute to the Legislature the intention t
Of giving 70 defendants in every other part of
the State the right to a jury trial. but of depriv
Ing all persons prosecuted in the city OF New
| able right. The Court will not imputo to the
| Legislature the intent to pass n law which
3us this s oe SO @ mneqq@ th and ust In
the right to trial by Jury in criminal cases is
one OF the most cherished rights OF the citizen.
| State and OF the United States. and the Court
should not construe an act OF the Legislature as
intention to do so is expressed in the cearest
and most unriistakable terms; and especially
has discriminated against persons engaged in
the liquor traffic in New York city by deprlving
on auoF
law. aud sentenced TO be imprisoned in that city.
must be confined in the penitentiary, subject 10
discipline nearly as severe as that Of The State
prison. and compelled to- associate with the
most hardened and abandoned character who
may be imprisoned in that place for terms not
exceeding I'VE years, under chapter 81 of the
1T seems to me clear from the language used
above @ mentioned, that section s5A does s''nt not
operate to extinguish the right OF removal from
the Special Sessions to the General Sessions,
which exists In this city in the case OF all mis-
demeanors; but even II the statute is to be re-
garded as ambiguous, and susceptible OF being
away such right. certainly think that a Just
regard for the rights ofgersons prosecuted under
latter construction should be adopted.
=" There is another consdera ton bearing upon
toned. and that Is this: serious questions may
arise as to how several other provisions OF this
| IL they are to be construed according to their
strict letter and without regard to other
statutes whose aid is apparently necessary in
Section 35 declares that, except as otherwise
provided by the act, all proceedings instituted
| Tor the punishment Of any violation of the pro-
prescribed in subd visions l. ., 3. OF section "a,
| shall be prosecuted by Indictment by the Grand
| Jury OF the county in which the crime WAS COM
| mitted and by trial in court OF record having
jurisdiction for the trial Of crimes of the grade
| of felony. The only two methods provided by
| this section for the arrest OF persons charged
Tan t and sc! variant and m
not able to discover that the act in express
terms provides any way OF getting the per.
l cha UaI hat FnFn
| Magistrate or court other than bench
warrant or, Magistrates warrant. Unless.
| regarded, and the provisions OF the Code OF
| Criminal Procedure or OF the Consolidation act,
read into the statute, question may arise as to
whether police officers have right to arrest.
lation OF It's provisions. Again, as all Violations
OF he statute In the city OF New York are triable
under section sSA in IL the Court Of SPECIAL ses
Sessions, question NAV arise as to whether the
provision Of section 35; requiring Maststrates TO
Magistrate, finds that crime not triable
been committed. applies TO the cases OF persons
held for trial in that city, after they have been
Is no other provision IN the act az to the taking
OF bail for persons held for trial for violation
| the taking OF bail, must not be read into tho
statute TO enable persons arrested in the city Of
Z
commission OF be crimes created by 1t. to eXer-
| else their constitutional right to give bail None
OF these questions arises In the before me-
and express no opinion In regard TO any Of
| them; but in constituting the provsions OF said
section 35A, 1t would seem - be desirable not to
| adopt rule OF Interpretation which, II applied
| TO some other provisions OF the statute. might
! render them imperative.
| "Lustly In nearly all statutes passed by the
| Legislature OF this state which have conferred
| jurisdiction upon Courts OF Special Sessions or
| other inferior courts to try offences OF tho
| grade OF misdcmeanors las are most of the
| crimes created by the statute In question:. spe-
cial care has been taken to preserve the right OF
| trial by jury, either by express provisions pro-
ydng for trials by Jury therein. or giving de-
| PENDANTS absolute right to have their cases
removed to a higher court, where criminal pro-
| cecdings are prosecuted by indictment and
trial by jury. Such was the case In the
statute passed many years ago giving n
| former Court OF Special Sessions in this city
| power TO try misdeneanors; and similar pro-
vision was embodied in the act of 1895, above
! referred to. which created the present Court of
| Special Sessions. Like provisions found in
statutes creating courts Of Special Sessions in
Code OF Criminal Procedure, which provides for