the statute, allowing an examination before the nearest magistrate in certain cases, does not apply.1

The term warrant implies a seal, except where the seal has been dispensed with by statute. But it has been decided in this State that it is an error to suppose that proceedings under the Revised Statutes, for disturbing religious meetings, can only be commenced by process actually issued. Parties may voluntarily, within the time limited by statute, as in any other case, appear and join issue or confess the complaint.3

SECTION III.

APPEARANCE AND PLEA.

The accused, on being brought before the magistrate, should be allowed a reasonable time for his defence, if he requires it.4 He may interpose the same pleas to which he would be entitled in a court of higher jurisdiction; for instance, he may demur to the complaint, plead to the jurisdiction, not guilty, in bar or in abatement. The several forms of pleas, which a defendant may make to a criminal charge, will be subsequently considered."

Many of the statutes in terms allow the magistrate to convict upon the confession of the accused; but, although the statute may only empower the justice to convict upon the oath of one or more witnesses, this implies a power to convict upon the confession of the party alone." The confession, to be effectual, should not only appear to agree with the charge, but it should, also, contain an admission of such specific facts as amount to the complete offence complained of; for a confession cannot extend or help out the description of the offence, as charged in the complaint. The plea of guilty is only to the facts which are charged in the complaint, and if these facts are so defectively charged, that it does not appear on the face of the complaint that the

Foster v. Smith, 10 Wend., 377.

Paley on Conv., 22.

Barb. Cr. L., 2d ed., 624; Davis, 780; 17 Wend., 211.

• Post.

'Holton on Sum. Conv., 46; 1 Stra., 545; Smythe, 245; 1 Burn., 889; Barb., Cr. L., 2d ed., 623.

defendant has committed any offence against the statute, the plea will not authorize a conviction.1

The confession, upon which the justice may convict, means a plea of guilty or its equivalent, and not a deduction of the magistrate from the prisoner's examination.2

The rule, that a criminal trial cannot proceed unless the defendant, or an attorney expressly authorized by him to appear for him at the time, so far as mere misdemeanors are concerned, applies only to the trial of an indictment. Where a summary trial is had without an indictment, the defendant may be tried in his absence, if he has once appeared.3

SECTION IV.

WITNESSES AND PROOF.

Although no mode of examination be pointed out by the statutes giving jurisdiction over the offence, yet justice requires that the accused should be confronted with the witnesses against him, and have an opportunity of cross-examination. For, though the Legislature, by a summary made of inquiry, intended to substitute a more expeditious process for the common law method of trial, it could not design to dispense with the rules of justice as far as they are compatible with the method adopted. Indeed, it may be useful upon this occasion to notice the general maxim, which has been laid down as a guide to the conduct of magistrates in regulating all their summary proceedings, namely: That "Acts of parliament in what they are silent, are best expounded according to the use and reason of the common law."4

The magistrate, as incident to his power to examine into this class of charges, has power to bring before him all persons who appear to be material witnesses, either upon the part of the people or of the accused. The attendance of the witnesses may be compelled by subpoenea and attachment, the same as upon the examination of offenders who are charged with more serious crim

'Holton on Sum. Conv., 47; Paley on Conv., 108; Barb. Cr. L., 2d ed., 623. Bennac v. Peo., 4 Barb., 164.

Blythe v. Tompkins, 2 Abb., 468.

Rex v. Simpson, 1 Stra., 45.

1 Chit. Or. L., 76.

inal accusations. The magistrate cannot pronounce judgment in the absence of any proof. The statute directs in such cases that the magistrate shall proceed summarily to inquire into the facts.2 The general rules of evidence in relation to the competency and credibility of witnesses, and the legality of the character of the evidence offered, which govern other criminal examinations and trials, apply to these summary convictions. It was not the design of the legislators that there should be a relaxation from the strict rules of evidence required by courts of record; but summary convictions are an institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harrassing the freeholders with frequent and troublesome attendance to try every minute offence. The evidence upon the part of the people should establish every fact and circumstances necessary to constitute the offence, and should support all the material allegations in the complaint. Thus satisfactory evidence that a female is "a common prostitute and idle person," will not authorize her conviction as a vagrant under the statute "common prostitutes," and "idle persons" are not necessarily vagrants; it is only "common prostitutes who have no lawful employment whereby to maintain themselves," and "idle persons who, not having any visible means to maintain themselves, live without employment," that come within the vagrancy acts. These acts are constitutional, but should be construed strictly and executed carefully in favor of the liberty of the citizen."

4

SECTION V.

JUDGMENT.

The testimony having been concluded, the magistrate is to render his decision. The judgment is said to consist of two points, viz: the conviction or acquittal, and the sentence or award of punishment. The latter, when pecuniary, should also state the distribution of the penalty, and, in some cases, the assessment of

Holt on convic., 55; 1 Burn, 881; Barb. Cr. L., 2d ed., 625.

Peo. v. Forbes, 4 Park., 611.

costs. The judgment must be such, in point of law, as is strictly warranted by the premises.1

Where a discretion is vested in the magistrate in regard to the penalty, either as to the object, or rate, or appropriation thereof, or where any sum is to be assigned, by way of satisfaction or reward, the judgment must, in such cases, specifically appoint the manner and the proportion in which the penalty is to be distributed; for then it becomes a necessary part of the judgment, and should appear in the record.2

But where the penalty is expressly appropriated by the statute, as where it is ordered to be divided equally between the poor of the parish and the party aggrieved, the judgment need not contain any award to that effect, but it is sufficient if it award the penalty to be distributed as the act directs.3

Each offender must be fined separately, whether he be condemned to pay the whole penalty imposed by the act, or only a part of it; for otherwise one, who had paid his proportionable part, might be detained in prison till all the others had paid theirs; which would be in effect to punish him for the offence of another.4

Upon conviction, under an act which inflicted a penalty of twenty pounds on any person who may disturb or disquiet any congregation, it was held that several persons, for a joint disturbance, were liable to separate penalties of twenty pounds each.5

SECTION VI.

RECORDS OF CONVICTION.

A record of the conviction should be made out and filed by the magistrate in cases of conviction. In some cases the statute specifies that the record should specify generally the nature and circumstances of the offence. In other instances it states gene

1 Paley on Conv., 151.

'2 T. R., 96; 1 East., 189.

8 East., 573; 1 Salk., 383; 2 T. R., 18.

6 Nev. & Man., 57; 1 Nun. & Walsh, 558.

5 T. R., 542.

1 R. S., 638, § 2.

rally that a record of conviction should be filed.1 The filing of a record of conviction is essential to the validity of a commitment by a police justice for vagrancy.2 But it has been held to be unnecessary in cases of disorderly conduct, under the statute applicable to the city of New York. No formal style of adjudication is necessary upon a conviction, as in judgments at common law; it is enough if it be said in the record of conviction: "Therefore, the defendant (naming him), is convicted of the premises or of the offence," &c., followed by an adjudication of the forfeiture without the formal words, "Therefore, it is considered," &c., or "That the defendant, according to the form of the statute, is convicted," and the words, "That the defendant is convicted," are sufficient, though the form given in the statute uses the words, "Duly convicted."4

The record should be signed, sealed and dated by the magistrate on the day when signed.5

The magistrate should insert in the record of conviction, the evidence given upon the examination had before him."

Upon the return to a writ of certiorari, to review a summary conviction, Mr. Justice EDMONDS laid down the following doctrine upon this branch of the subject:

The power of summarily convicting offenders, being in derogation of the common law, must be strictly confined to the special statute from which its force is derived. The restrictions and regulations relative to these convictions, established by the higher courts in England before the revolution, were declaratory of the common law, and are binding in this State, unless they may have since been repealed or altered by statute. A record must be made up in every such case as a pre-requisite to commitment, and trespass will lie against a magistrate who commits without having so done. The reasons for its necessity are: 1. For the protection of the accused, that he may not again be convicted of

11 R. S., 633, § 3.

• Montague's Case, 19 Abb., 413, note.

Case of the twelve commitments, 19 Abb., 394.

⚫ 1 Ld. Raym., 583; Carth., 502; 2 T. R., 18; 4 Id., 768; 2 Barb. Cr. L., 2d ed., 627. Vide 1 R. S., 633, § 11, for precedent in New York city.

Paley on Convic., 42; 1 Burn., J., 743.

• Mullins v. Peo., 24 New York, 403.

C. P.-10.