People v. Ramsey

179 A.D. 523, 36 N.Y. Crim. 63, 165 N.Y.S. 957, 1917 N.Y. App. Div. LEXIS 6573

Opinions

Lyon, J.:

That the defendant was guilty of the crime of hunting without a license in violation of section 185 of the Conservation Law (Consol. Laws, chap. 65 [Laws of 1911, chap. 647],

* as amd. by Laws of 1913, chap. 508) was proven beyond a reasonable doubt. The single question involved upon this appeal, as I view it, is whether the judgment of conviction should have been reversed upon a mere technicality which in no way affected the merits and which has never been urged by the appellant.

The defendant was arrested upon a warrant issued upon information laid by a game protector charging that the defendant “ did then and ■ there unlawfully, wrongfully, knowingly and wilfully and contrary to the statute in such cases made and provided, commit the crime of misdemeanor by then and there hunting without a license contrary to and in violation of section 185 of the Conservation Law (being chapter 647 of the Laws of 1911, as amended to this date), and that the following named persons can as your informant verily believes, give material testimony in support of said charge. Wherefore, your informant prays that the depositions of this informant and of Mrs. Mary Larock and George W. Larock, witnesses may be reduced to writing and duly subscribed, and that a warrant issue for the arrest of said accused and that he be dealt with pursuant to law.” Accompanying the information were the depositions of the two persons above" named, the first stating that on January 10, 1916, she saw the defendant crossing the fields of Mr. Barters going towards the Jibway woods with a shotgun, and that his father was with him having a gun, and that they had their hounds with them. The deposition of George Larock stated that on or about that day he saw the defendant hunting with a gun in the town of Oswegatchie, and that on several occasions during the month of January, 1916, he saw the defendant accompanied by his father crossing the fields towards the woods known as the Jibway Swamp, and that each of them had a gun, and that they had their hounds with them. Upon the information and the two depositions a justice of the peace issued a warrant charging the defendant with the crime of hunting without a license, upon which he was arrested, pleaded not guilty, and gave bail. Adjournments were duly had until August 3, 1916, when the action came to trial before the justice and a jury. Following impaneling and swearing the jury the record states: - “Defendant’s attorney moved to discharge the defendant on the ground that the information is insufficient, being based on the information and belief and hearsay.” The justice denied the motion and the trial proceeded. At the close of the testimony for the People the defendant moved “for a dismissal on the ground that there is not competent evidence in the case tending to establish the offense charged in the information.” The court denied the motion. At the conclusion of the evidence, the jury-rendered a verdict of guilty, and a fine of thirty-five dollars was imposed upon the defendant who was to stand committed until the fine should be paid. The defendant then appealed to the County Court of St. Lawrence county which affirmed the judgment of conviction. Thereupon an appeal was taken to this court from the order of affirmance.

The opinion of my associate favors reversal of the order of the County Court upon the sole ground that the information did not charge a crime for the reason that it did not allege that the defendant was not within the exceptions specified in section 185. I think, however, the defendant must be held to have waived the alleged insufficiency of the information by appearing, pleading and proceeding with the trial under an objection to the sufficiency of the information limited solely to the ground that it was on “ information and belief and hearsay.” It clearly appears that the defendant knew with what offense he was charged, and for what crime he was being tried. No claim was made upon the trial that the lands upon which the defendant was charged with having hunted were within the exception of section 185. Had the objection now being urged been taken at the time the defendant was arraigned, or even at the opening of the trial, it is very probable a corrected or second information would have been laid and a new warrant issued. At least the attention of the prosecution would have been called to the alleged omission in the information and an opportunity have been given to supply it, and the alleged insufficiency not have been waived. It was held in the case of People v. Jacobs (165 App. Div. 721) that an information which after giving the particulars of time and place, charged the defendants with “ then and there hunting without license on Shinnecock Bay, contrary to and in violation of section 185 of the Conservation Law,” was sufficient. While it does not definitely appear whether the exception contained in subdivision 8 was stated in the information the inference from the report of the case is that it was not. Referring to the case of People v. Stedeker (175 N. Y. 57), the court expressly approves the doctrine laid down in Fleming v. People (27 N. Y. 329). The language of the opinion (pp. 67', 68) seems to apply directly to the question involved in the case at bar and to hold that the information was good. However, the defendant has not been prejudiced as to any substantial right by the alleged omission in the information. Evidence received upon the trial without objection overwhelmingly established the defendant’s guilt, and I do not think this court is justified in reversing the order of the County Court upon technical grounds which were neither raised before the justice of the peace nor before the County Court, nor before this court upon appeal.

I favor affirmance of the order appealed from.

All concurred, except Woodward, J., who dissented in an opinion in which Sewell, J., concurred.

Added by Laws of 1912, chap. 318.— [Rep.