
    The People, Resp’ts, v. George McCann, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    1. Criminal law—Code Grim. Pro., § 211—Requirements of, aimed at CASES IN WHICH DEFENDANT HAS ABSOLUTE RIGHT TO TRIAL BY JURY AFTER INDICTMENT, o
    The defendant was arrested upon a charge of assault in the third degree and brought before the court of special sessions. He was told that he could have time to procure counsel and was entitled to trial by jury. On being ■asked if he was ready for trial and if he elected to be tried by a jury, he •demanded immediate trial by the court without a jury, which was accordingly had and resul’.ed in his conviction. Immediately thereafter he made an affidavit setting forth various grounds of error in the proceedings and conviction, and applied for and obtained an allowance of an appeal there from. The objections contained in the affidavit were such as would arise in a proper case under Code Grim. Procedure, §211, which section is found in part four of that Code, of which the caption is as follows: “ Of the proceedings in criminal actions prosecuted by indictment.” Held, that this ■caption might be taken into consideration in determining the signification of words used in that part of the Code, and that by so doing the requirements of section 211 were found to be aimed at cases in which the defendant had an absolute right to be tried by jury after indictment.
    3. Same—Assault in third degree—Exclusive jurisdiction oyer, rests IN COURT OF SPECIAL SESSIONS EXCEPT AS PROVIDED BY CODE GRIM. PRO., §§ 57, 58, 59.
    
      Held, that assault in the third degree was an offense of which courts of special sessions had exclusive jurisdiction under Code Criminal Procedure, section 56, except as provided by sections 57, 58 and 59.
    8. Same—Party charged with assault in third degree has not absolute right to trial by jury after indictment—Code Crim. Pro., § 57.
    
      Held, that the case in question was not one in which the defendant had a right to be tried by jury after indictment, but that it might have been given him under section 57 in the discretion of certain officers.
    4. Same—Code Crim. Pro., § 211.
    The defendant having been asked how he would be tried and having replied, by the court without a jury and having been so tried; Held, that the provision of section 211 if applicable to the case, had been complied with.
    5. Same—Return of magistrate need not contain matters not raised in defendant's affidavit—Code Cium Pro., § 751.
    By section 58 the magistrate is required to inform the accused of his right under sections 57 and 58 to remove the proceeding so that it may be tried after indictment, if the requisite security and bail can he obtained. The return in this case did not show the performance of these requirements. Held, that the return was silent on these points, because the affidavit of the defendant was silent. That by section 751 the errors to be relied upon on appeal must be specified in the affidavits upon which the appeal was allowed, or they would not be considered in the appellate court. That the magistrate was not required to make return as to matters not contained in the affidavit.
    6. Same—requirement of notice to prisoner by Code Crim. Pro., § 58 —Is directory not mandatory.
    
      Held, that the requirement of notice to the prisoner was not mandatory, hut directory.
    7. Same—What is waiver of notice.-
    
      Held, that the defendant by his demand of an immediate trial by the court waived all considerations of other modes of proceedings than that demanded.
    
      F. A. Lyman, for app’lt; O. H. Lewis, dist. att’y for resp’ts.
   Boardman, J.

The defendant was arrested on a complaint charging him with assault in the third degree, an offense of which courts of special sessions have exclusive jurisdiction under section 56 of- the Code of Criminal Procedure, except as provided by sections 57, 58 and 59.

He was brought before the court, was told that he could have time to procure counsel and was entitled to a trial by jury. On being asked if he was ready for trial, and if he selected to be tried by a jury after having pleaded not guilty, he demanded immediate trial by the court without a jury.

A trial was accordingly had, the defendant was convicted and sentenced to four months in the penitentiary, which sentence on the appeal to the court of sessions was reduced to thirty days.

Immediately after his conviction defendant made an affidavit setting forth various grounds of error in such proceeding and conviction, and applied for and obtained an allowance of an appeal therefrom. The objections called to the attention of the justice in defendant’s affidavit are such as would arise in a proper case under section 211 of the Code of Criminal Procedure. That section is found in part four of the Code, the caption of which is as follows :

“Of the proceedings in criminal actions prosecuted by indictment. ” We have held in People v. Bates (38 Hun, 180), that this caption might be taken into consideration in determining the signification of words used in it. By doing so we find the requirements in section 211 aimed at cases in which the defendant had an absolute right to be tried by a jury after indictment.

Such is not the present case, and the defendant had no such right. It might be given to him under section 57 in the discretion of certain officers. It would have been absurb, therefore, for the magistrate to inform the defendant that he had such right. He was asked how he would be tried. He replied by the court without a jury, and was so tried.

So far as section 211 applies to the present case, if at all, its provisions were compiled with.

By section 58 the magistrate is required to inform the accused of his rights under section 57 and section 58 to remove the proceeding so it may be tried after indictment if the requisite certificate and bail can be obtained. This was not done so far as the returns show. Two answers are made to the omission.

First. That the return is silent on that subject because the affidavit is silent in respect to it. In People ex rel, Baker v. Beatty (39 Hun, 476), it is held that the error to be relied upon on appeal must be specified in the affidavit upon which the appeal was allowed or it will not be considered in the appellate court. Sec. 751. The reason is given in section 756 whereby the magistrate “must make a return to all the matters stated in the affidavit and must cause the affidavit and return to be filed, etc.” He is not required to make returns as to matters not contained in the affidavit. This is reasonable.

When the appeal is taken it must be presumed the appellant knows what alleged errors he wants to review.

The return is made with reference to such errors only. If this be not true, all sorts of technical objections may be urged upon appeal when but one worthless objection is alleged in the affidavit. It should be presumed that the proceedings were légal and valid unless it is affirmatively shown that they are otherwise. '

Second. We are not prepared to hold the requirement of such notice to the prisoner mandatory and that a failure to give it is a jurisdictional defect. The large majority of magistrates authorized to hold courts of special sessions are laymen possessed of little legal knowledge, and still less experience in legal affairs. We cannot think it was intended that the neglect of this and similar provisions should prove fatal to a conviction. If so, what shall be the limit to the information to be given? Will a verbal statement of the substance of sections 57 and 58 be enough, or must the section be read through to the accused? While the statute should be observed in the interest of justice and fairness, we think it is only directory. The defendant, by his demand of an immediate trial by the court, waived all considerations of other modes of proceedings than that demanded. The right was one that he could waive. People ex rel. Murray v. The Justices of the Court of Special Sessions, etc., 13 Hun, 533; affirmed, 74 N. Y., 406.

The judgment of the court of sessions should be affirmed.

Hardin, P. J., and Follett, J., concur.  