
    (53 Misc. Rep. 528.)
    PEOPLE v. VERSAGE.
    (Yates County Court.
    March, 1907.)
    Criminal Law—Appeal—Procedure—Dismissal.
    Where affidavit on appeg.1 from a conviction of intoxication was not delivered to the magistrate, as required by Cr. Code, § 755, within five days, so that the return could be made by the magistrate, the appeal must be dismissed.
    Appeal from Police Court of Penn Yan.
    Dominic Versage was convicted of intoxication, and appeals. Dismissed.
    Thomas Carmody, for appellant.
    Spencer F. Lincoln, Dist. Atty., for the People.
   KNOX, J.

The defendant was convicted in police court of Penn Yan, July 22, 1905, for intoxication in a public place. The affidavit upon which the defendant sought to set out the ground of this appeal was verified July 25, 1905. '

It appears to have been filed in the Yates county clerk’s office September 22, 1905. No return is on file, and the affidavit has not been delivered to the magistrate, so that a return could be made. Clearly the defendant has lost all rights he may have had to have his case reviewed, and the court has no power to relieve him. Sections 752, 755, 759, and others following of the Code of Criminal Procedure.

Order for dismissal of the appeal and for carrying the judgment into effect may be presented.

Appeal dismissed. i  