People v. Mulcahy

153 N.Y.S. 912

Opinion

ROSALSKY, J.

The defendant, pursuant to a summons, appeared in the Fourth District City Magistrates’ Court to answer a charge of disorderly conduct tending to a breach of the peace. The magistrate conducted a preliminary hearing to inquire into the subject-matter of the charge made against the defendant, in the course of which the complainant testified that at the time that he served a summons upon the defendant he admitted to him that he operated the automobile on the night in question, when it ran into the complainant’s horse and injured it.

The defendant denied that he either operated the automobile which collided with the complainant’s horse, or that he made any admission to the complainant at the time that the summons was served upon him, and requested the magistrate to permit him to produce a witness who was present when the summons was served, to disprove that any such conversation took place. It is manifest that the only opportunity that the defendant had of knowing that the complainant would testify to this alleged admission was upon his arraignment. The refusal of the magistrate, in these circumstances, to allow the defendant to produce a material witness to contradict the testimony of the complainant, was in violation of one of the defendant’s rights, namely, to produce witnesses in his behalf, in accordance with subdivision 3 of section 8 of the Code of Criminal Procedure.

As this error affected a substantial right of the defendant, the judgment of conviction must be reversed, and a new trial granted.