
    People v. Sullivan.
    
      (Supreme Court, General Term, Third, Department.
    
    July 2, 1888.)
    1. Criminal Law—Adjournment during Trial—Failure to Sit on Appointed Dat.
    The court of sessions duly adjourned March 13th to March 13th, during defendant’s trial. Because of a severe storm, the court could not meet until the 14th, when, the trial was finished, and defendant convicted. Held, that under Code Proc. Ñ. "V. § 34, authorizing the court to adjourn from day to day, or to a specified time, as the court had not been adjourned to thel4th, its action on that day was coram non judice and void; and it is not validated by section 35, providing for the opening of the term, and an adjournment, if the judge does not come, as the term had been duly opened, and adjourned to the 13th.
    2. Same—Failure to Object to Trial.
    In such a case the failure of defendant to object to proceeding with the trial could not constitute a court.
    Appeal from court of sessions,. Montgomery county.
    Eugene Sullivan, defendant, was indicted for the crime of willfully discharging a loaded fire-arm 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 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 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. Ho 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’s 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.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      E. J. Maxwell, for defendant. Charles S. Nisbet, and H. L. Huston, for the People.
   Landon, J.

The court of sessions duly and regularly adjourned on the 12th of March until the 13th. But on the 13th it did not convene at all. Section 34 of the Code of Procedure authorizes an adjournment “from day to day, or to a specified future day.” An adjournment from the 12th to the 13th was an adjournment from day to day. An adjournment from the 12th to the 14th 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 13th. They did not convene or sit in court on the 13th, and the court did not act on that day. How, when it assumed to act on the 14th, 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 (Judgm. § 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:) “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 be 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. People, 37 N. Y. 203, a court 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 pursued. Cases in other states are to the same effect. Wight v. Wallbaum, 39 Ill. 554; Moore v. Heron, 17 Neb. 701, 24 N. W. Rep. 425, 451; Langhorne v. Waller, 76 Va. 213. The motion in arrest of judgment was well taken. It presented the question that the proceedings on the 14th 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.  