
    The People ex rel. Orson T. Cook, App’lt, v. Samuel Smith, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    I. Special sessions—Certiecate oe conviction.
    The certificate of conviction of a court of special sessions must he made during the session of the court, and cannot he made by the justice after the court organized to try the cause has ceased to exist.
    2. Same.
    Eelator was tried and convicted before a court of special sessions for cruelty to animals and the court rendered a judgment on the conviction which was void because in the alternative, and also gave a certificate of conviction embodying such judgment, but not stating the offense._ Eight days later, without any adjournment having been had, the justice issued a new certificate embodying a different judgment. Held, that the court had no power to issue the latter certificate and that an arrest thereon was without warrant of law.
    
      Appeal from an order of the county judge of Orleans county, dismissing a writ of habeas corpus, and remanding the relator to the custody of the defendant.
    
      D. N. Salisbury, for app’lt; W. O. L. Stafford, dist. att’y, for resp’t.
   Dwight, J.

The relator was tried by a jury in a court of special sessions on a charge of cruelty to animals. The trial was concluded, by a verdict of guilty, on the 23rd day of May, 1889, and on the same day the court rendered a judgment on conviction, which was void because in the alternative of fine or imprisonment The court, also, on the same day made and signed a certificate of conviction embodying the judgment rendered as above, and which was liable to the further objection that it did not designate the offense of which the accused had been convicted, except as a misdemeanor, and delivered it to a constable, the defendant in this proceeding. Eight days later, and without any adjournment of the court or continuance of the case in the meantime, the justice made and signed another certificate of conviction, embodying what purported to be another judgment, and delivered it to the same constable, who thereupon arrested the relator, and he was in custody on that process when he sued out the writ of habeas corpus upon which the order appealed from was made. We think the order was erroneous, and that the relator was entitled to his discharge.

The first judgment and certificate were void for the reasons stated; and the second certificate was void because it embodied a judgment which had not been rendered, and because at the time it was made the justice had no jurisdiction of the case. We held in the case of The People v. Starks, 17 N. Y. State Rep., 234, that a court of special sessions is organized only pro hac vice for the trial and judgment in each particular case, and is functus officio when judgment is rendered therein and a certificate of such judgment is made and signed and delivered to the sheriff or constable. Lattimore v. The People, 10 How. Pr., 336.

An error occurred in the report of the opinion of the court in the case of Starks,in the omission of the words “ the filing of ” before the words “ the certificate of judgment” in the third paragraph of page 238. We did not intend to say that the making and signing of the certificate was not a part of the duty of the court of special sessions, while organized as such, as under the statute it clearly is. Code of Grim. Pro., § 721. That section requires that the court shall make and sign the certificate “when a conviction is had upon a plea of guilty or upon a trial; ” and this language, though not to be construed to mean immediately or upon the instant of the rendition of the judgment, undoubtedly does intend that the certificate shall be made during the session of the court and can not be made by the justice after the court, organized for the trial of the case, has ceased to exist. Equivalent language is used in § 717 in regard to the time when judgment shall be rendered, and so it was in the statute before the enactment of the Code of Criminal Procedure. 2 R. S., 714, § 19. Under that statute the court in Lattimore v. The People, supra, says: “It is as a court and not as a justice of the peace that the magistrate renders judgment, and the record must show that the court was in session when it was rendered. There is nothing in the statute which requires a court of special sessions to render judgment forthwith upon the delivery of the verdict by the jury, as in a civil action before a justice, but undoubtedly it must be rendered during the continuance of the session of the court and before it is at an end.”

In this case a judgment was so rendered and a certificate thereof delivered to the constable immediately succeeding the verdict, on the 23d of May. That judgment and certificate were void. There is nothing to show when, if ever, the new judgment was rendered except that the new certificate was dated May 31st, and there is no pretence that the court had been held open or the case continued beyond the 23d. This being so the justice had no power to revive or reorganize the court of special sessions at a subsequent date for the purpose of either rendering judgment or making and signing a certificate.

In this case the justice testified that he did write in his minutes a sentence such as that embodied in the second certificate, and he may have intended to be understood (though that is not clear) that he wrote that sentence before he wrote the one which was pronounced ; but the evidence is undisputed that he pronounced only one sentence and that was the void judgment which was embodied in the first certificate. The statute does not require that any judgment should be entered in the minutes of the court. In short there is but one mode of rendering judgment and that is by pronouncing sentence. And there is but one record of the judgment and that is the certificate of the sentence pronounced.

We conclude, therefore, that the judgment which was embodied in the first certificate was the only judgment rendered in this case; that after it was certified, and the certificate delivered to the constable, the court in which the relator was tried was at an end; that the attempt of the justice thereafter to certify a judgment which had never been rendered was nugatory, and that the arrest of the relator on the new certificate was without warrant of law.

If so, the order dismissing the writ of habeas corpus, and remanding the relator, was error, and must be reversed.

Order appealed from reversed and the relator discharged.

Barker, P. J., and Macomber, J., concur.  