
    The People of the State of New York, Resp’ts, v. Harmon Starks, Appl’t. The People ex rel., Harmon Starks, App’lt, v. George W. Batten, Sheriff of Niagara County, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Criminal law — Practice — Violation of excise law — Court of SPECIAL SESSIONS HAS EXCLUSIVE JURISDICTION OF—CODE CrIM. PRO., §§ 58, 56, sued. 32 and 211.
    The defendant in the first appeal (the relator in the second) was tried and convicted hy a court of special sessions of a violation of the excise law. He made no request for the adjournment provided hy Code Criminal Procedure. § 58, to enable him to procure an order of renewal of the excise law. Held, that he was not entitled to have been admitted to bail to await the action of the grand jury. That the court of special sessions had exclusive jurisdiction of the case under section 56 subdivision 32 subject to the power of removal provided by section 57. That the provisions of section 211 did not apply to section 56 so far as the latter related to the offense in question.
    
      H. Same—Court of sessions has power to modify sentence of court of special sessions—Code Crim. Pro. § 764.
    The Code of Criminal Procedure § 764 expressly give the court of sessions power to modify the sentence of a court of special sessions.
    3. Same—A court of special sessions exists only for the trial of each particular case—When the judgment is rendered therein it is functus officio.
    A court of special sessions is not a continuing court It is organized and exists only for the trial of each particular case and is functus officio when the judgment is rendered therein. Even the certificate of the entry of judgment which operates as a warrant of commitment, and the return of the record on appeal, are acts of the justice who held the court and not of the court of special sessions.
    4. Same—Power of court of sessions—When justice of peace without jurisdiction—Code Crim Pro § 764,
    On the return of a writ of habeas corpus a justice of the supreme court adjudged the sentence of the court of special sessions illegal, but did not assume to pass upon the judgment of conviction there rendered. Said justice in his order remanded the prisoner to the custody of the constable “to the end that he might be taken before the said court of special sessions and such proceedings there be taken upon the conviction already had therein as might be lawful in the premises.” There had theretofore been an appeal taken to the court of sessions. Held, that the part of the order quoted was nugatory. That the justice of the peace to whom the relator was sent had no jurisdiction to alter the sentence. That the court of sessions had complete jurisdiction of the case for the purpose of hearing and determining the appeal and affirming, reversing or modifying the judgment and sentence of the court below.
    1. Appeal from a judgment of the county court of Niagara county, affirming the judgment of conviction of a court of special sessions, and modifying the sentence pronounced thereon.
    2. Appeal from the order of a judge at chambers, on return of a writ of habeas corpus, remanding the relator to the custody of the defendant.
    
      Richard Crowley, for app’lt; W. Martin Jones, for resp’t.
   Dwight, J.

The defendant in the first appeal, the relator in the second, was convicted in a court of special sessions, in Niagara county, of a violation of the excise law; and sentenced to pay a fine of fifty dollars and be confined in the Erie county penitentiary for the term of four months. Upon a certified copy of such conviction and sentence, he was delivered to the custody of the keeper of the Erie county penitentiary; but having already appealed from the judgment to the court of sessions of Niagara county, and the appeal being allowed, he was, on the same day, admitted to bail, pending the appeal, and discharged from custody. Some months afterwards, and before the hearing of the appeal, the discovery seems to have been made that, by reason of the expiration of the contract between the two counties, before the judgment of the special sessions was rendered, the Erie county penitentiary had ceased to be the proper place of confinement for Niagara county prisoners, sentenced for terms less than one year; and that the sentence was for that reason illegal.

Thereupon the relator was surrendered, by his bail, to the keeper, of the Erie county penitentiary, and immediately sued out a writ of habeas corpus, returnable before Mr. Justice Corlett, of the supreme court, to inquire as to the cause of his imprisonment. On the return of that writ, an order was made discharging the relator from the custody of the keeper of the penitentiary, and remanding him to the custody of the constable who had executed the warrant of commitment of the court of special sessions, “to the end,” as the order states, “ that he might be taken before the said court of special sessions, and such proceedings there be taken upon the conviction already had therein, as might be lawful in the premises.” The constable took his prisoner before the justice of the peace, who held the court of special sessions, in which the conviction was had, but the justice very properly declined jurisdiction of the case, and the prissoner went at large.

Thereafter the appeal from the judgment of conviction came on to be heard before the court of sessions, where- the conviction was affirmed and the sentence modified to imprisonment in the county jail of Niagara county for the term of sixty days and a fine of twenty-five dollars. Upon such judgment of affirmance and modification, and a commitment issued thereon, the relator was committed to the county jail. Thereupon kb sued out another writ of habeas corpus, directed to the sheriff of Niagara county, and returnable before Mr. Justice Lewis of the supreme court. On the return of that writ he was remanded to the custody of the sheriff.

The first of these appeals was that above mentioned, taken from the judgment of the court of sessions, and the second was taken from the last-mentioned order made by Justice Lewis.

The first appeal brings up for review the trial and conviction in the court of special sessions; and, first, the defendant objects that the justice erred in refusing his demand that he be permitted to give bail to await the action of the grand jury. This privilege he claims was his, under section 211 of the Code of Criminal Procedure.

The justice was right. Section 211 is found in part four, of the Code or Criminal Procedure, which, as its title imports, relates to “proceedings in criminal actions prosecuted by indictment.” Its provision is that “if the crime with which the defendant, is charged, be one triable, as herein-before provided, by a court of special sessions, * * * the magistrate, before holding the defendant to answer, shall inform him of his right to be tried by jury after indictment.’’ This provision must necessarily relate to crimes also triable by jury after indictment; and can have no application to cases in which courts of special sessions have exclusive jurisdiction. The case at bar came within the latter description. (Code of Criminal Procedure, § 56, sub. 32.) Subject to the power of removal provided by section 57 of the same statute, the court of special sessions, complaint having been made to a committing magistrate, had exclusive jurisdiction of the offense charged, and no request was made for the adjournment provided by section 58, to enable the defendant to procure an order of removal.

Moreover, the inclusion of the offense with which the defendant was charged, in the list of those of which courts of special sessions have exclusive jurisdiction, was by an amendment of section 56, subsequent to the enactment of section 211; and that amendment, being plainly inconsistent with the provisions of the latter section, so far as it related to the offense in question (among others), those provisions must be held to have been pro tanto repealed thereby.

The objection to the question put to the witness Ten Brook in regard to the composition of “Buffalo Spray” was properly sustained. The witness testified that he had no knowledge on the subject except what another man told him.

There was no error or ‘ irregularity in what occurred in connection with the amicus curiae, Andrew Welcher. He did not act, or claim to act, as a member of the court; both parties'consented that the justice might consult with Mr. Welcher, which he had a right to do without such consent ; and it does not appear by the record that he did, in fact, consult with him upon any question in the case.

No error is disclosed by the record of the court of special sessions which calls for correction here.

The power of the court of sessions to modify the sentence of the court of special sessions is expressly given by section 761 of the Code of Criminal Procedure.

The judgment of .the court of sessions must be affirmed.

In respect to the second appeal but little further need be said. The only ground of illegality of his imprisonment, specified in the petition of the relator for the writ of habeas corpus, and the only one argued here, is that the court of séssions did not have" “jurisdiction to render a judgment of imprisonment and fine, after the order of this court declaring said sentence, judgment and conimitment of Justice Taylor illegal and void, and ■ remanding your petitioner back to the court of special sessions for such action and proceeding as might be lawful in the premises.”

We think the jurisdiction of the court of sessions, on the appeal taken by the defendant, was in no manner impugned by any of the matters alleged in the petition. The order of Justice Corlett only adjudged the sentence of the court of special sessions illegal. It did not assume to pass upon the judgment of conviction there rendered.

That order, so far as it directed the discharge of the prisoner from the custody of the keeper of the Erie county penitentiary, was properly made; but its further directions were nugatory. There was no court of special sessions in existence to which the proceedings in the case of the relator could be remitted, or in which further proceedings in that case could be had. A court of special sessions is not a continuing court. It is organized and exists only for the trial of each particular case, and is functus officio when the judgment is rendered therein. Lattimore v. The People, 10 How. P. R., 336.

Even the certificate of the entry of judgment, which operated as a warrant of commitment, and the return of the record on appeal, are acts of the justice who held the court, and not of the court of special sessions.

Moreover, the action had been several months before removed into the court of sessions, by appeal, and that court alone had jurisdiction of it for any purpose. The justice of the peace to whom the relator was sent was, therefore, entirely right in refusing to entertain jurisdiction of the case.

The court of sessions, on the other hand, had complete jurisdiction of the case for the purpose of hearing and determining the appeal, and affirming, reversing- or modifying the judgment and sentence of the court below. Section. 764, supra.

The exercise of that jurisdiction seems to have been in all respects regular, and, as we have just held, its judgment is to be affirmed.

The order of Justice Lewis remanding the prisoner to the custody of the sheriff, for execution of the judgment of the court of sessions, must also be affirmed.

1. Order on return of writ of habeas corpus affirmed.

3. Judgment of the court of sessions affirmed and proceedings remitted.

Barker, P. J.; Haight and Bradley, JJ., concur.  