
    (79 Misc. Rep. 442.)
    PEOPLE v. FORBES et al.
    (Erie County Court.
    February 26, 1913.)
    Jury (§ 31)—Right to Jury Trial—Courts in Which Trial by'Jury is Required.
    Const, art. 1, § 2, and article 6, §§ 18, 23, guarantee trial by jury in all cases where it has been heretofore permitted, and prohibit giving inferior courts greater jurisdiction than is conferred on County Courts. Code Or. Proc. § 717, provides that courts of special sessions shall have no power to impose a fine of more than $50. Laws 1909, c. 570, § 70, as amended by Laws 1910, c. 228, permits the City Court of Buffalo, which is a court of general sessions, to impose without trial by- jury any sentence which the County Court of Erie can impose. Held, that section 70 is not unconstitutional because permitting as great a sentence to be imposed without a jury as is imposed by the County Court on a jury trial, since the right to a jury trial in courts of special sessions did not exist before the adoption of the Constitution.
    [Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 204^219; Dec. Dig. % 31.*]
    Appeal from City Court of Buffalo. •
    George Forbes and another were convicted of assault, and they appeal. Affirmed.
    Harlow C. Curtiss, of Buffalo, for appellants.
    Wesley C. Dudley and Clifford McLaughlin, both of Buffalo, for the People.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   TAYLOR, J.

The defendants, after a joint trial, have been convicted in the City Court of Buffalo of assault in the third degree. Under this conviction the defendant Forbes was sentenced to the Erie county penitentiary for a term of 60 days and to pay a fine of $100, and the defendant Wright was sentenced to the Erie county penitentiary for a term of 90 days and to pay a fine of $250. The defendants appeal from said judgment, claiming that it was against the weight of the evidence, and that the City Court was without jurisdiction to impose a fine of more than $50, and that therefore the judgment is, null and void, and that the defendants should be discharged.

The appellants contend that section 70 of chapter 570 of the Laws of 1909, as amended by chapter 228 of the Laws of 1910 of the state of New York, which permits the City Court of Buffalo, a court not of record, to impose any sentence which the County Court of Erie County can impose, is unconstitutional. In support of their contention the appellants rely upon section 2 of article 1, and sections .18 and 23 of article 6, of the Constitution of the state of New York, and upon section 717 of our Code of Criminal Procedure. ¡Said sections of the Constitution provide, in substance, that trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; that our Legislature shall not hereafter confer upon any inferior or local court of' its creation any greater jurisdiction than is conferred upon county courts; and that courts of special sessions shall have jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law. Said section 717 of the Criminal Code states in part that courts of special sessions shall have no power to impose a fine of more than $50. The appellants’ contention is that inasmuch as the above-mentioned portion of our statutes of 1910 permits the City Court of Buffalo, without the right to a trial by a common-law jury of 12 men, to impose as great a sentence as can be imposed by the County Court in which the right to a trial by a common-law jury after indictment is guaranteed, that such statute confers upon the City Court greater powers than have the County Court, and that therefore said act is unconstitutional. The answer to this contention, it seems to me, is not hard to find. The right to a trial by a common-law jury of 12 men in courts of special sessions did not exist before our Constitution went into effect. People v. Justices, etc., 74 N. Y. 406.

It follows that section 2 of article 1 of the Constitution, which provides that the right to trial by jury shall remain inviolate forever in all cases in which it has been heretofore used, creates no right which did not previously exist, and therefore does not grant to accused persons the right to a trial by a common-law jury in courts of special sessions since the Constitution went into effect. People v. Dutcher, 83 N. Y. 240.

Said section 717 of the Code of Criminal Procedure, it must be noted, is not a constitutional provision, but a mere act of the Legislature specifying the power of courts of special sessions in the matter of sentencing. The said act of 1910 simply amplifies such power in one of said courts, but not to an extent greater than that enjoyed by the County Court; and since the legislative act is not ex post facto as to the case at bar, I cannot see why it is not constitutional, for, while it may result in depriving a citizen of liberty, no one can successfully argue that it is not “due process of law.” No constitutional or other vested right is taken away.

I believe further comment to be unnecessary. To recapitulate: The Legislature in passing this act of 1910 did not act in contravention of the state Constitution by conferring on the City Court of Buffalo “any greater jurisdiction than that conferred upon county courts” (drtidle 6, § 18, New York Constitution), if my understanding of the meaning of the word “jurisdiction” is correct; the Legislature did not'take away any existing right to a trial by common-law jury, for no such right ever existed in courts of special sessions as to assault in the third degree;" courts of special sessions have exclusive jurisdiction over assault, third degree, with the exception of the removal provision contained in section 57, C. C. Proc., and since this removal is not a matter of right, but discretionary with the superior judge or justice, there is not, and never was, any vested right to be tried for assault, third degree, by a common-law jury; the said act of 1910 is not ex post facto, and it is “due process of law.” The conclusion I reach has support in the opinion handed down in Re Hallenbeck, 65 How. Prac. 401. This opinion holds that, in spite of the provisions of section 717 of the Code of Criminal Procedure, the Court of Special Sessions of the City of Albany, under a special statute, has a right to fine to the extent of $500 one who has committed the crime of petit larceny.

While the testimony upon which the conviction is based is not of the most convincing nature, I find that the judgment is not sufficiently against the weight of the evidence to warrant a reversal or a new trial. McDonald v. Dunbar, 114 App. Div. 306, 99 N. Y. Supp. 768.

Therefore the judgment of conviction is affirmed as to both defendants.  