III-THE APPEARANCE AND PLEA. IV.-WITNESSES AND PROOF. V.-JUDGEMENT. VI.-RECORDS of CONVICTION. VII-EXECUTION AND COMMITMENT. VIII-REVIEW OF PROCEEDINGS. IX.-DISORDERLY PERSONS. X-PROCEEDINGS AGAINST THEM. XI.-SURETY FOR GOOD BEHAVIOR. XII-RECORD OF CONVICTION AND COMMITMENT. XIII-BREACHES OF RECOGNIZANCE. XIV.-PROSECUTIONS THEREFOR. XV.-CONSEQUENCES OF RECOVERY. XVI.-TWO JUSTICES MAY DISCHARGE IN CERTAIN CASES. XVII-KEEPER OF JAIL TO EXHIBIT LISTS. XVIII-DUTY OF COURT OF SESSIONS. XIX.-EXPENSES HOW DEFRAYED. XX-ACCOUNTING FOR PROCEEDS OF LABOR. XXI. SPECIAL PROVISIONS APPLICABLE TO NEW YORK CITY. XXII.-BEGGARS AND VAGRANTS. XXIII-PERSONS HAVING THEIR FACES PAINTED OR OTHERWISE DISGUISED. XXIV.-PROFANE CURSING AND SWEARING. XXV.-THE DISTURBANCE OF RELIGIOUS MEETINGS. XXVI.-THE OBSERVANCE OF SUNDAY. XXVII-GENERAL PROVISIONS TO ENFORCE THE PROHIBITIONS OF THE THREE LAST SEC TIONS. XXVIII-RACING OF ANIMALS. XXIX-HAWKERS AND PEDDLERS. XXX.-CRIMINAL CONTEMPTS. XXXI-GAMBLING. XXXII.-OTHER SUMMARY CONVICTIONS. By a summary proceeding in this chapter, is meant such as is directed by the several acts of the Legislature (for the common law is a stranger to it, except in the case of contempts), for the conviction of offenders, and the infliction of certain punishments created by those acts. In these there is usually no intervention. of a jury, but the person accused is acquitted or condemned by the suffrage of such person only as the statute has appointed for his judge. The exception giving a jury trial, is by amendment to the act concerning the disturbance of religious meetings. Although there is no jury trial, the proceedings must be according to the course of the common law in trials by jury. There must first be an information or charge, and the defendant must 14 Blac. Com., 280. be summoned and have an opportunity to make his defence. The evidence in support of the charge must be such as the common law approves, unless specially directed otherwise by statute, and there must be a conviction, judgment and execution, all according to the course of the common law.1 Justices of the Peace, Mayors, Recorders and Aldermen of cities have the power, in certain instances, to arrest and cause the arrest of persons, and enter upon the examination of offences, and impose punishment therefor in a summary manner, without jury trial. In some instances this power is conferred upon justices of the peace alone, and in other cases any of the officers above named, may execute the authority. This arrest, examination and punishment of offenders in a summary way, without the intervention of a jury, are founded entirely upon special authority, conferred and regulated by acts of the Legislature, and are mostly embraced in the provisions of the statutes in relation to the internal police of the State.2 No new offence is cognizable in that manner, unless expressly made so by statute, and all the proceedings under, an authority so created, must be strictly conformable to the regulations prescribed by the special law, in each instance, from which all their force is derived. The question has been raised in our courts whether the authority conferred by the Legislature was not unconstitutional, in depriving the accused, by proceeding in a summary manner, of the right of trial by jury; and it was held that the Constitution does not require a trial by jury in every case of a criminal nature, but only in all cases in which it had been used at the time of the adoption of the new constitution. The summary proceedings against rogues and vagabonds, and disorderly persons, formed a part of the common law of the colony of New York, derived from the English statutes, and was brought by our ancestors to this country as a part of their law, and were embodied in the act of 1788, for apprehending and punishing disorderly persons (2 General Laws, 52), and the substance of the provisions of the latter act, was incorporated into 1 Revised Statutes, 639. As the proceedings under this title of the Revised Peo. v. Phillips, 1 Park., 95. ' 1 R. S., 612. 'Barb. Cr. L., 2d ed., 586; Paley on Convic., 1; 1 N. & W., 471; Smythe, Statutes, preserve all the rights of the accused which he had before, and give him some additional rights in a proceeding in which the right of trial by jury has never existed in this State, both that statute and the act of 1833 enlarging it, are constitutional, although they extend to some offences of the same nature and character, which were not embraced in the act of February, 1788.1 But though the Legislature may add new offences of the same grade or class as those previously constituting a disorderly person, they cannot, by declaring an offence which at common law was indictable, e. g., keeping a bawdy house, to be punishable summarily under the provisions relating to disorderly persons. Hence, the provisions of the statute, by which keepers of bawdy houses are declared disorderly persons, and subjected to summary punishment without trial by jury, are unconstitutional and void.2 The principal cases in which magistrates are authorized to proceed summarily to conviction and punishment, will be found stated below. In addition to those where punishment is authorized to be made, there are a large number of cases mentioned in the statutes, which, although in their nature of a quasi criminal character, the summary proceedings are for the recovery of a statutory penalty, and the nature of the proceedings are rather those of a civil action than of a prosecution for the commission a criminal offence. In many instances the statutory provisions are silent in regard to the details of the proceedings treated of in this chapter, and in such cases, reference must be had to the common law for instruction in the course to be pursued.3 SECTION I. THE COMPLAINT. Some of the provisions of the statute require a complaint to be made upon oath; though it is not requisite that the complaint should be upon oath if not required by the statute. It has been said that the only case in which a complaint can be dispensed 1 4 Duffy v. Peo., 6 Hill., 75. Vide Morris v. Peo., 1 Park., 441; Plato v. Peo., 3 Park., 586. Vide Wynehammer v. The Peo., 13 New York, 378. 2 Warren v. Peo., 3 Park., 544. ⚫ 1 Stra., 45. Paley on Convic., 15, 60; Bos. on Pen. Stat., 16. with, is that in which the magistrate is authorized to convict upon his own view. The complaint should not be entertained if not made within the specified time in those cases where the complaint is required by statute to be made within a specified time after the commission of the offence.2 The expression in most statutes, limiting the time within which summary prosecutions are to be brought, is that the prosecution, etc., shall be "within months or days after the commission of the offence, and in accordance with this rule, the complaint or conviction, as the case may be, should in such cases be, at the farthest, on the last day of the prescribed period, counting the day on which the offence was committed inclusively.3 Where the complaint is in any case required by the statute to be in writing, it should be in that form. If made in writing, the following requirements should be observed: It should be addressed to the magistrate by his name and style, to show his jurisdiction on the face of the proceedings. It should be dated so as to appear subsequent to the offence, and prior to the other proceedings, as well as, also, to show that it is made within the time specified by the statute authorizing the proceedings.5 It should contain a precise statement of the offence charged, for the evidence given on the examination can only support the original charge, and cannot supply what is lacking in the complaint; and the offence should, in all respects, be brought within the statute.6 It should contain a positive charge against the accused; stating the facts upon information and belief are insufficient to justify the magistrate in issuing a warrant, if the attendance of the person from whom the information was derived can be procured. No intendment is admitted to help out a defective description of the offence, by reason of the omission of an essential averment; but the use of words in the complaint synonymous with 1 Paley on Convic., 15, 60. 1 Nun. & Walsh, 476. ' 1 N. & W., 477; Doug. 446-478; 15 Ves., 247; 9 Barn. & Cress., 134, 603. ⚫ 1 Stra., 261. ' 1 Ld. Ray., 510; 2 id., 1546; Paley, 58. 2 Salk, 680; Doug., 232; Paley on Conv., 65; 2 Ld. Ray., 1268; Id., 791. * Comfort v. Allen, 13 Abb., 276; 10 Mod., 155; Paley, 96. Paley, 68; 1 T. R., 122. those in the statute is sufficient, although the precise words of the statute are not followed. Thus a complaint, stating that the accused attended a meeting for carrying on a combination of journeymen, "for the purpose of obtaining an advance of wages," was held sufficient where it was made, under a statute prohibiting "combinations to obtain an advance of wages."1 SECTION II. THE WARRANT. Many of the statutes in relation to summary convictions require the magistrate to issue a warrant. Where, however, the statute does not in express terms direct that a warrant should be issued, but jurisdiction of the offence is conferred upon him, or he is empowered to cause the offender to be brought before him, he is authorized to grant a warrant to cause his apprehension.2 Some of the statutes authorize the summary arrest of the person without any warrant or process. It is believed to be the better practice, when such an arrest is made, to convey the offender at once before a magistrate and there make a complaint, and cause the issuing of a warrant against the accused. It is held in England that a summons, or under our practice a warrant, is indispensably necessary in all penal proceedings of a summary nature, and it was so declared by Lord KENYON to be an invariable rule of law.3 The general regulations in regard to the form and requirements of the warrants, the arrest of the accused thereunder, and the return of the warrant, are essentially the same as those issued for the arrest and examination of persons charged with graver offences, and will be found discussed in a subsequent chapter.4 It has, however, been held that a person arrested under the statute relative to disturbing religious meetings, must be carried before the magistrate who issued the warrant. The provisions of 15 Barn. & Ald., 527. 1 Chit. Cr. L., 31; Barb. Cr. L., 2d ed., 622. 1 Salk., 181; 6 Mod., 41; 8 Mod., 154, note; 6 T. R., 198. See 4 Blac. Com., 283, cases collected in notes, Phila. ed. of 1861. • Vide post. |