
    The People of the State of New York, Respondent, v. George Brown, Appellant.
    Second Department,
    November 15, 1912.
    Crime — Court of Special Sessions, city of New York — sentence by justices who did not attend trial — evidence — good character of defendant — failure of defendant’s witnesses to attend.
    It is not necessary that the justices of the Court of Special Sessions of the city of New York who impose a sentence upon one convicted in that court and who was remanded for sentence should be the same justices who held the trial.
    An obiter dictum appearing in the opinion of the Court of Appeals in which all the judges concur is entitled to respect as a declaration of law.
    The Court of Special Sessions of the city of New York is a continuous court with a practice and procedure analogous to that of the higher courts of criminal jurisdiction.
    Although it is shown that the defendant in a criminal action bore a good character the jury may find him guilty nevertheless, if after considering his character together with the other evidence they conclude that he is guilty.
    A new trial in a criminal action will not be granted because a witness for the defendant was absent and refused to attend court, if no application for an adjournment or continuance was made and the testimony of the witness is simply as to collateral facts.
    Appeal by the defendant, George Brown, from a judgment of the Court of Special Sessions of the city of New York, borough of Brooklyn, rendered against the defendant on the 9th day of February, 1912, convicting him, of a violation of section 1141 of the Penal Law, and also from an order entered in the office of the clerk of the said court oh the 12th day of March, 1912, denying the defendant’s motion for a new trial.
    
      Brinton H. Miner [Nathan B. Chadsey with him on the brief], for the appellant.
    
      James C. Cropsey, District Attorney, and Hersey Egginton, Assistant District Attorney, for the respondent.
   Jenks, P. J.:

This appeal is from a judgment of conviction of the Court of Special Sessions of the city of New York for a violation of section 1141 of the Penal Law, and from an order that denies the defendant’s motion for a new trial.

The trial court, composed of Justices Moss, Russell and O’Keefe, found the defendant guilty on February 5, 1912, and remanded him for investigation and sentence until February 9, 1912. On that day he was sentenced by a court composed of Justices Moss, 0 ’Keefe and Fleming. It is urged that the sentence is invalid for the reason that “Mr. Justice Fleming had no right to impose sentence on defendant, not having heard the testimony.” Justice Fleming did not impose the sentence, hut was a member of the court of judgment. I am of opinion that it was not legally essential that the court which pronounced judgment should he composed of the same justices, or indeed of any of the justices, who composed the trial court. The principle which controls is expressed in People v. Bork (96 N. Y. 198) as follows: “We know of no constitutional principle which requires that judgment on a conviction for crime, must he pronounced by the same judges before whom the trial was had. It has never been supposed that the death of a judge, after the conviction of a defendant, would prevent sentence, but this would follow if the contention should be admitted that the same judge who tried the case must pronounce the judgment.” (See, too, Weed v. People, 56 N. Y. 628; also United States v. Gordon, 5 Blatchf. 18, 29; Ex parte Williams, 26 Fla. 310; State of Iowa v. Jones, 115 Iowa, 113; Cleek v. Commonwealth, 21 Gratt. 777.) While it is true that the principle announced in People v. Bork (supra) was obiter dictum, nevertheless it is entitled to respect as a declaration of the law by our highest court, concurred in by all of the judges.

Ohitty on Criminal Law (Vol. 1, p. *691) points out that it was “doubted whether justices of assize or nisi prius had any power, at common law, to pass sentence upon a prisoner convicted before them,” and says that it is certain that they could not do so upon an indictment sent down from the King’s Bench to be tried by writ of nisi prius, for the reason that the transcript only was sent, their commission ceased with the verdict, and theh only remaining duty was to return, on the postea, the result of the proceedings. He further points out that by statute they were enabled to do so in all cases of felony and treason, although they were still left at liberty to return the postea, and he writes: Justices of oyer and terminer, gaol delivery, and of the peace, have power to give judgment hy virtue of their respective commissions. But at common law, by granting anew commission, all the proceedings taken before the former commissioners expired,” and, therefore, no judgment could he given or execution ordered by the successors, and that the rule was abolished hy the statute passed in the 11th year of Henry VI (Chap. 6) as to justices of the peace, and by the statute passed in the 1st year of Edward VI (Chap. 7) as far as respected the judges of gaol delivery and oyer and terminer. This principle of the limitation of the commission and the expiry of the court is. the reason for some judgments which have been rendered relating to Courts of Special Sessions. (See Lattimore v. People, 10 How. Pr. 336; People v. Quimby, 72 Misc. Rep. 421; People v. Starks, 17 N. Y. St. Repr. 234, and like cases.). But this principle does not apply with respect to the Court of Special Sessions of the city of New York, which is in its nature a continuous court, with a practice and procedure analogous to those of the higher court of criminal jurisdiction. (Greater N. Y. Charter, §§ 1409, 1410; Inferior Criminal Courts Act [Laws of 1910, chap. 659], § 31, as amd. by Laws of 1911, chap. 576. See, too, Code Crim. Proc. §§ 11, 50.) And it must he regarded as a continuous court irrespective of the fact that its membership from time to time may be made up of different justices. There was a continuation of this case for the reason that the determination of conviction was not final but in its nature interlocutory. (See. Cleek v. Commonwealth, supra.)

There is much to he said in favor of the general principle that the justices‘who composed the court of trial should be the same justices who compose the court of judgment, or at least some of them should sit in each court. If the wisdom of the principle could determine the rule itself in this particular case, it might be pointed out that two of the three trial justicés sat in the court that imposed the judgment, and that this case was continued for the purpose of investigation. This was eminently proper in a great city, where the court is not presumed to know anything of the defendant and should avail itself of what means it has at hand in order to ascertain his character and reputation, with view to the degree of judgment to be pronounced.

I am not convinced that this power did not exist on account of the expression of section 2188 of the Penal Law, which provides as to the composition of a court which should impose the sentence upon a rearrest of a defendant. In People ex rel. Dunnigan v. Webster (14 Misc. Rep. 617; affd., 1 App. Div. 631) it was held that Courts of Special Sessions had the inherent power to suspend sentence, so that this expression of the Penal Law was superfluous and at most but declaratory.

I think the judgment should not be reversed upon the facts or upon any of the other questions of law. It is quite true that so far as the direct evidence is concerned it is a question of the oath of the young lad, Scherg, against that of the defendant. Scherg testifies that certain pictures were exhibited to him by the defendant. The defendant admits that he had the pictures in his possession. But at the time of the arrest the policeman who made the arrest testifies that he went to the place of the defendant with Scherg, who pointed out the defendant and said that the pictures were in a coat of the defendant which hung near the defendant at the time. The officer went forthwith to the coat, found the pictures, which were identified by Scherg. The defendant does not contradict this testimony in any respect except to testify that he never exhibited the pictures to Scherg. The case did not present the question of the oath of Scherg against that of the defendant, but of Scherg’s testimony coupled.with that of the police officer against the defendant.

It may be entirely true that the defendant bore a good character, but that is not conclusive, for the rule is that if, after considering the evidence of good character with all of the other evidence in the case, the jury conclude that the defendant is guilty, they must so find notwithstanding his good character. (People v. Conrow, 200 N. Y. 356, 361.)

The evidence submitted upon the motion for the new trial is based upon the affidavit of Butcher to the effect that he did not see any struggle between the lad and the defendant; that the lad was not at the office of the defendant for so long a time as the lad testifies, but only for a short moment, and that Butcher was ill on the day of the trial. But the defendant knew of the existence of this witness at the time of the trial, for he had called him to testify before the magistrate. At the trial the court was but informed that this witness was absent on account of rheumatism; that defendant had asked him to come; that he had said that he would not cóme, but no application was made for an adjournment or for a continuance of the trial upon this ground. However that may be, the testimony of the witness was simply as to collateral facts. I think the judgment of conviction of the Court of Special Sessions must be affirmed.

Hirschberg, Burr, Woodward and Rich, JJ., concurred.

Judgment of conviction and order of the Court of Special Sessions affirmed.  