
    Queens County Court.
    February, 1896.
    PEOPLE v. CHARLES HILDEBRAND.
    (74 S. R. 548.)
    1. Criminal law—Counsel.
    If the defendant undertakes to secure professional assistance, the responsibility for the presence of counsel, as well as for the consequences of his absence, rests upon the defendant.
    2. Same—Adjournment.
    Where he has availed himself of such opportunity and appears by counsel on the adjourned day and secures further time, incidentally to his demand for a jury, he is not entitled as of right to further delay on the ground of his counsel’s absence where no excuse is offered therefor.
    3. Same.
    Where a defendant is charged with a misdemeanor; a criminal court, whether of record or not of record, may, in the absence of counsel, proceed with the trial, particularly if no serious excuse, such as sudden illness rendering it impracticable to secure other counsel in time, is presented.
    4. Same.
    The defendant has no just cause for complaint that the police justice denied his motion for an adjournment upon the ground of the absence of his witnesses, where no excuse is given for their absence, no proof made or offered that they had been subpoenaed, or even that they were within the jurisdiction of the court and could be compelled to attend by subpoena and no proof made that their testimony was material to the defense. ,
    5. Appeal—Reversal.
    A judgment upon conviction, rendered by a court of special sessions, may be reversed by the county court upon appeal, and not otherwise.
    6. Same.
    The appeal must be heard upon the original return, and affidavits and other papers may not be received in support of an application for a new trial.
    
      
      7. Same.
    The sentence will not be modified because excessive and severe, where it is not presented as an alleged ground of error by the appeal affidavit, and the return does not bring with it the evidence.
    Appeal from a judgment convicting the defendant, in a court of special 'sessions, of a violation of the regulations of the hoard of health of the town of Newtown.
    George C. Moore, for appellant.
    Daniel Noble, Dist. Atty., for the People.
   GARRETSON, J.

The appellant was convicted in a court of special sessions, held by the police justice of the town of New-town, of a misdemeanor arising under section 211 of the Penal ■Code, for a violation of the general orders and regulations of the board of health of that town, and sentenced to pay a fine of $50, and to be imprisoned in the county jail for the term of sixty days. The alleged grounds of error urged by him as calling for a reversal of the judgment are: First, that he was compelled to go to a trial without the aid of counsel; and, second, that he was denied by the court an adjournment because of the absence of two important and material witnesses. So much of the proceedings in the court belo w as are relevant to. these allegations of error have been returned by the police justice, as- required by section 756 of the Criminal Code, and, as no amended or further return has been made under section 757, we are necessarily confined to the matters thus presented in the consideration and determination of the appeal. Id., § 763. The appellant was arraigned before the police justice on September 23d, and pleaded not guilty, and the case was adjourned to the 25th then instant, ait the appellant’s request, to enable him to consult with his counsel. On the last-named day the appellant appeared with 6 his counsel, and the prosecutor and counsel for the people were also present and ready to proceed with the trial. The appellant asked for a further adjournment, which was refused by the police justice, whereupon the appellant demanded a jury,: and the case was adjourned to October 1st, at 2 p. m'., upon which day he appeared without his counsel, and asked that the trial he postponed until 3 p. m., to enable his counsel to appear, and also moved that the case be again adjourned, owing to the absence of two of his witnesses. The police justice informed him that the motion to adjourn would be considered if the appellant would make an affidavit that the witnesses were material, and that the appellant could not safely proceed to trial without them. This affidavit not being made, the motion to-, adjourn was denied, a jury impaneled and completed at 3:15 p. m., and the trial commenced. The people were represented by counsel, and the appellant acted in his -own behalf. Witnesses for the people and appellant were sworn and examined; the appellant examined his own and cross-examined the people’s witnesses; the case wa-s summed up by both sides; the jury were charged by the police justice, and, after due deliberation upon their part, a verdict of guilty w-as rendered. While it might have been to the -advantage -of the appellant to have been assisted by counsel, yet we -cannot say that the -absence -of counsel operated to his prejudice. It cannot be so gathered from the return, and it may not be so presumed. The law does not do more a-t the outset of any criminal action than give a defendant an opportunity to employ counsel. If he undertakes to secure professional assistance, the responsibility for the presence -of counsel, as well as for the consequences of his absence, rests upon -the defendant. This case is not one where a defendant is a poor person, and for lack of means was compelled to conduct his own defense. The appellant was granted one adjournment to procure -counsel. Having availed •himself of this opportunity, h-e appeared by counsel on the adjourned day, and secured further -time, incidentally to his demand for a jury. On the last adjourned day mo- excuse was offered for his counsel’s absence, and he wa-s not entitled as of right to further delay. The people were ready for trial, and had been so ready on the previous day, and the orderly administration of justice, as well as a proper regard for the rights of the prosecution, in the absence of a sufficient reason to the contrary presented by the appellant, required that the court should proceed with the case. The mere absence of the attorney or counsel of the accused as ground for postponement of a trial is not favored toy the court in any 'case, especially if a prior postponement has been had. And it will onot be seriously, questioned that, where a defendant is charged with a misdemeanor, a criminal court, whether of record or not of record, may, in the absence of counsel, proceed with the trial, particularly if no serious excuse, such as sudden illness rendering it impracticable to secure other counsel in time, is presented. It is the practice of magistrates empowered to hold courts of special sessions to inform the defendant, when arraigned, of his right to counsel, and to give him time to secure counsel if he so desires, and we are disposed to regard this course of procedure with favor, and to require its observance in all cases, particularly in view of the provisions of section 8 of the Code of Criminal Procedure and of article 1, § 6, of the constitution, which guaranty to every person the right to appear and defend in person and with counsel in any trial and in any court, wherever accused of crime; yet it has been held that an omission by the magistrate holding such a court to inform the defendant of his right to counsel was not error. People v. Cook, 45 Hun, 34; 9 St. Rep. 412.

We are also of the opinion that the appellant has no just cause for complaint that the police justice denied his motion for an adjournment upon the ground of the absence of his witnesses. There was no excuse given for their absence; no proof made or offered that they had been aubpoenaed, or even that they were within the jurisdiction of the court, and could be compelled to attend by subpoena; and the omission of the defendant to show that their testimony was material to the de: fense made it incumbent upon the police justice to deny the motion. It was suggested by the appellant’s counsel upon the argument .that, being a layman, inexperienced and unlearned in the law, the appellant could not comply with the ruling of the police justice, and prepare the required affidavit setting forth the materiality of the testimony of the absent witnesses, and the reasons why they were not present in court. Granting this to be the fact, still it does not appear that the police justice was unwilling or refused to take proof in that regard, either in the form of a deposition, or by affidavit, and we cannot presume that he omitted to perform any duty w|Mch the law imposed upon him to the prejudice of the rights of the appellant.

The appellant’s 'Counsel, also urged upon the argument that this court had the power upon 'this appeal to grant a new trial in analogy to the practice which prevails in the supreme and county courts upon a conviction after indictment, and bias presented affidavits setting forth facts in support of a motion therefor. Such, a course would be unprecedented under the present system of criminal procedure. A judgment upon conviction, rendered 'by a court of special sessions, may be reversed by 'the county court upon appeal, and not otherwise. Code Or. Proc., § 749. As we -have already stated, the appeal must be heard upon the original return (Code Or. Proc., § 763), and affidavits and other papers may noit be received in support of an application for a new trial. In a proper case the appellate court may grant a new trial (Id., § 764) where it appears from the return that error has been committed in the court below which requires that the judgment upon conviction be reversed, and justice demands that the appellant should again answer the charge upon the merits, in which event the new trial is had in the county court (Id., § 768). The foregoing disposition made by us of the only alleged grounds of error presented by the appeal affidavit leaves nothing before us to be considered as a reason why a new trial should be had.

We are also unable -to entertain- the appellant’s contention that the sentence he modified because excessive and severe, for the reason that it is not presented as an alleged ground of error by the appeal affidavit, and for the further reason that the return does not bring with it the evidence, and we have no means of knowing the facts out of which the -offense arose. The judgment upon conviction, appealed from, should be affirmed.

Judgment affirmed.

NOTE ON “POSTPONEMENT OF TRIAL ON GROUND OF ABSENT WITNESS.”

Rule as to what is required to entitle party to postpone trial on ground of absent witness, stated. People v. Jackson, 111 N. Y. 362; 19 S. R. 506.

Good faith on part of defendant’s counsel is required. People v. McGuinness, 39 S. R. 533.

Motion to postpone trial is properly denied, where the moving affidavit does not assert that there is any absent witness, but only suggests that the counsel want time and that it is not customary to try an indictment for so grave an offense so soon after it is found. People v. Shea, 147 N. Y. 78; 69 S. R. 320; 11 N. Y. Cr. —.  