People v. Nash

Foster, J.

This is an appeal from a judgment of the City Magistrate’s Court adjudging the defendant guilty of disorderly conduct. On this appeal questions (inter alia) are raised as to the ruling of the court below on the admissibility of evidence, and as to- the-sufficiency of the evidence- to justify the- conviction of the defendant. No evidence has been returned to this, court, and it appears-, from the statement; of counsel, that, through the oversight of the court below no evidence was preserved. Certainly no evidence is contained in the return of the court below.

The Court of Appeals in People v. Giles, 152 N. Y. 136; the Appellate Division in People v. Hines, 57 App. Div. 419; and this court in People v. Benison, 32 Misc. Rep. 366, and in many other cases have pointed out in no doubtful terms, the propriety, as well as- the necessity, of preserving the evidence whenever a case is heard and determined, and declare the failure to so preserve the testimony reversible error.

Why this- plain .and manifestly proper requirement of the law is so frequently disregarded is- past finding out. It entails much unnecessary hardship and expenses both to- the people and to the unfortunate defendant, and merits, condemnation. The judgment must be reversed, and a new trial ordered.

Judgment reversed and new trial ordered.