Opinion
Argued March 31, 1913
Decided May 13, 1913
Henry Hirschberg for appellant. Charles S. Whitman, District Attorney ( Robert S. Johnstone of counsel), for respondent.
The defendant, a boy eleven years old, was convicted in the Court of Special Sessions, Children's Part, of having stolen a pocket book from the person of one Sadie Klein, and sentenced to the House of Refuge. From an order of the Appellate Division, affirming such conviction, this appeal is taken.
Several objections are raised to the validity of this judgment. First. It is urged that there was no evidence before the court that the defendant was under the age of sixteen years, a condition necessary to give the court jurisdiction of his offense which — the larceny being from the person — would have been a felony if committed by an adult. (Penal Code, § 531; now Penal Law [Cons. Laws, ch. 40], § 1296.) But section 699 of the same Code (now Penal Law, § 2186) provided that a felony not capital or punishable by imprisonment for life when committed by a child under sixteen should be only a misdemeanor. There was no oral evidence as to the defendant's age, but he was present in the court in person, and it was provided by section 19 of the Penal Code (Penal Law, § 817) that the court or jury might determine the age of a child by personal inspection. This is the general rule prevailing in nearly all jurisdictions apart from any statutory provision on the subject. (1 Greenleaf's Evidence, § 14 L; 1 Wigmore on Ev. § 222, and see cases there cited.)
Second. It is next objected that the statute authorizing the prosecution of the defendant in the Special Sessons violated the constitutional provision (Art. 1, § 6) that no person shall be held to answer for a capital or otherwise infamous crime except on the presentation or indictment of the grand jury. Whatever the original view of the subject may have been, the present judgment is that within this and similar constitutional provisions, the character of the offense is determined by the nature of the punishment rather than by its supposed moral turpitude. ( Ex parte Wilson, 114 U.S. 417; People ex rel. Cosgriff v. Craig, 195 N.Y. 190.) Even were moral turpitude still the test, the legislation before us could not be condemned because plainly the immature age of the offender might well be considered to diminish the extent of its moral transgression. The statute reduces crimes committed by children under sixteen to the grade of misdemeanors, and the punishment which the court has power to impose is only the same as that which may be inflicted for other misdemeanors.
Third. Nor are such juvenile offenders deprived of the constitutional right of trial by jury, for that right is limited by section 23 of article 6 of the Constitution, which expressly provides that Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as shall be prescribed by law. ( People ex rel. Comaford v. Dutcher, 83 N.Y. 240.) Fourth. The failure to ask the defendant whether he had any legal cause to show why judgment should not be pronounced against him, was not an error for which judgment should be reversed. This requirement, found in section 480 of the Code of Criminal Procedure, existed at common law in the cases of felony, and the failure to comply with it is fatal to the judgment. ( Messner v. People, 45 N.Y. 1; People v. Faber, 199 id. 256; People v. Nesce, 201 id. 111.) Section 480, however general in terms, should not be considered as extending the rule to misdemeanors, for by section 473 punishment for a misdemeanor can be imposed in the defendant's absence, and of course if absent he could not be called upon to state a cause why judgment should not be pronounced against him.
The appeal book in this case discloses a carelessness in keeping the minutes of the Court of Special Sessions which calls for comment, to the end that the justices of that tribunal may institute a reform in that respect. The affidavit of the complainant charged the defendant with the crime of grand larceny without specifying any degree of that crime. The minutes of the judgment appear in the appeal book as follows:
"Pleads- N.G. on June 3rd. Trial, June 3 and guilty. Sentence, House of Refuge."
Symbols of this ambiguous character are not appropriate to the minutes of a court of justice dealing with personal liberty. In stating the plea there is no occasion for the use of any abbreviation at all. Furthermore, it is to be observed that the defendant appears to have been adjudged guilty of grand larceny in the second degree. This should have been distinctly specified in the minutes of judgment.
The judgment of conviction should be affirmed.
WILLARD BARTLETT, HISCOCK, CHASE, CUDDEBACK and HOGAN, JJ., concur; MILLER, J., not sitting.
Judgment of conviction affirmed.