
    The People of the State of New York, Resp’ts, v. Eugene Sullivan, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 3, 1888.)
    
    OOUBT OF GENERAL SESSIONS—EFFECT OF NOT ASSEMBLING ON ADJOURNED
    day—Proceedings coram non judice The defendant was indicted for the crime of willfully discharging a loaded firearm at a railway train. He was brought to trial before a jury at the Montgomery county court of sessions duly held by the county judge and two justices for sessions of that county at the court house in Fonda on the 12th day of March, 1888. The trial proceeded but was not concluded ■on that day, when an adjournment was duly ordered and taken until the next morning, March 18, 1888, at 9 o’clock in the forenoon. But owing to a storm of extraordinary severity accompanied with an unusual fall of snow neither the county judge nor one of the justices of sessions reached the court house. No court convened on that day. On the next day March 14th, the judge and justices, and jury appeared and resumed their place, the court was declared open and the trial of the defendant proceeded without objection on his part, resulting in his conviction and sentence. Before sentence was pronounced the defendant moved in arrest of judgment upon the ground that there was no legal session held on the 14th day of March. Held, that the motion in arrest of judgment was well taken. That the proceedings on the 14th were coram non-judice and void.
    Appeal from a judgment of conviction and sentence of the Montgomery county court of sessions.
    The defendant was indicted for the crime of willfully ■discharging a loaded firearm at a railway train and car moving upon a railway. He was brought to trial before a jury at the Montgomery county court of sessions duly held by the county judge and two justices for sessions of that county, at the court house in Eonda on the 12th day of March, 1888. The trial proceeded but was not concluded on that day, when an adjournment was duly ordered and taken until the next morning, March 13, 1888, at 9 o’clock in the forenoon. But owing to a storm of extraordinary severity accompanied with an unusual fall of snow, neither the county judge nor one of the justices for sessions reached the court house. No court convened on that day. On the next day, March 14th, at about 12 o’clock the judge and justices and jury appeared and resumed their places, the court was declared open and the trial of the defendant proceeded without objection on his part, resulting in his conviction, and sentence to state prison for one year. Before sentence was pronounced the defendant’s counsel moved in arrest of judgment upon the ground that there was no legal court of sessions held on the 14th day of March, 1888. The motion being denied, the defendant’s counsel excepted.
    
      E. J. Maxwell, for def’t; Charles S. Nisbet and H. S. Huston, for the people.
   Landon, J.

The court of sessions duly and regularly adjourned on the twelfth of March until the thirteenth. But on the thirteenth it did not convene at all. Section 34 of the Code of Civil Procedure authorizes an adjournment “from, day to day, or to a specified future day.” An adjournment from the twelfth to the thirteenth was an adjournment from day to day. An adjournment from the twelfth to the-fourteenth would manifestly be an adjournment “to a specified future day.” Our attention is called to the thirty-fifth section, but that provides for opening the term, and for an adjournment if the judge authorized to hold the term does not come to the place where the term is appointed to be held. These judges had duly opened the term and duly adjourned the court to the thirteenth. They did not convene or sit in court on the thirteenth, and the court did not act on that day. Now, when it assumed to act on the fourteenth, what warrant had it for action ? It had not been appointed for that day, nor continued or adjourned to it. Might it not as lawfully sit at any unspecified future day ? We must declare the law as it is, not make it. The statute has 'assumed to provide for adjournments, but here is a case for which it has not provided. Freeman on Judgments,. § 90, says: “Every term continues until the call of the next succeeding term, unless previously adjourned sine die.” But how continues ? Under a practice regulated by statute-it must continue as the statute provides; if there is no statute, then in accordance with its own practice, and following that practice one term might continue until the time fixed for the next. But Freeman also says (section 121) r “In the absence of any statutory provision to the contrary, the term is lost unless the judge appears at the appointed time, and all subsequent proceedings are void.”

The authorities in this state, to which we are cited, are to the effect that in opening, constituting and adjourning-court the statutory directions must he substantially followed. or the court fails.

In People v. Bradwell (2 Cow., 445) the circuit judge-appeared on the first day; the justices for sessions did not appear until two days later. The circuit judge opened the circuit on the first day, but conceiving that he had no power to open the oyer and terminer in the absence of his associates, that court was not opened until their arrival. It was-held that the court of oyer and terminer failed to exist.

In People v. Clews (4 Abb. N. C., 264) it was held that the court of oyer and terminer failed because not duly adjourned. In Northrup v. The People (37 N. Y., 203) a count of oyer and terminer adjourned from White Plains to Bedford. It might have been duly appointed at Bedford in the first instance, but it had been appointed at White Plains. The proceedings at Bedford were held void. These cases are not exactly in point, but they are to the effect that the statutory practice must be presumed. Cases in other states are to the same effect. Wight v. Walbaum, 39 Ill., 554; Moore v. Herron, 17 Neb., 701; Langhorne v. Waller, 76 Va., 213.

The motion in arrest of judgment was well taken; it presented the question that the proceedings on the fourteenth were coram non judice and void, and such they were. The failure of the defendant to object to proceeding with the trial could not constitute a court.

The conviction and sentence must be reversed.

Learned, P. J., and Ingalls, J., concur.  