
    The People of the State of New York ex rel. Margaret Weick, Appellant, v. The Warden of the City Prison of the City of New York, Respondent.
    First Department,
    January 25, 1907.
    Court—-continuation of Trial Term —criminal jurisdiction not lost thereby --when habeas corpus not proper remedy.
    There is nothing in the Codes or Constitution which prevents the continuation of a Trial Term beyond the duration of the original time set, even though in the meantime another term of the court is appointed, to be held. In fact the provisions of section 45 of theCode of Civil Procedure andsection432 of the Code of Criminal Procedure authorize the continuation of a term beyond the expiration of the time appointed.
    Hence, a court whose .term is continued into the period when 'another term is'heid does, not lose j urisdiction to try one indicted for a crime,
    
      The person indicted for crime has no constitutional right to be tried in one court room rather than in another in the same county, and hence an objection to jurisdiction on such ground is without merit.
    A judgment of conviction will not be set aside upon mere technical objections, if the rights of the accused have been fully protected, and the errors do not affect a substantial right.
    In any event, habeas corpus is not a proper remedy by which to contest the jurisdiction of the court upon the ground that its term was unlawfully continued. If the judgment be irregular, the proper proceeding is by a motion for arrest of judgment or by an appeal.
    Appeal by the relator, Margaret Welch, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 2d day of January, 1907, dismissing a writ of habeas corpus theretofore ■ issued in behalf'of the relator and remanding the said relator to the custody of the defendant.
    
      Edward Hymes for the appellant.
    
      JRobert G. Taylor, Assistemi District Attorney, for the respondent.
   Ingraham, J.:

A Trial Term of the Supreme Court was appointed by the Appellate Division of this department, to commence on the first Monday of Movember, 1906, and to that court Mr. Justice Greénbaum, a justice of the Supreme Court, was assigned. He presided in that court during the month of Movember, and at the end of that month, on the application 0f the district attorney, an order was entered which recited that,-“it appearing to the Court, from the statements of the District Attorney of the County of Mew York, and from the indictments filed by the Grand Jury of the County of Mew York, and triable in this court, That the public interests require that the Movember, 1906, Term of this Court be continued.” It was, therefore, ordered that “this Movember, 1906, Term be and the same is hereby continued to and until the third day of December, 1906, and thereafter until such business as may be and be brought before this Court is disposed of.” A Trial Term of the Supreme Court had ■ been appointed by the Appellate Division of this department, to commence on the first Monday of' December, 1906, and thereafter during the month of December both the continued November term and the December term transacted business in the county of New York.

On the thirtieth of November, when the order was made continuing the November term, an unfinished case was on trial, which case was continued until the 11th of December, 1906, and on the 12th of December, 1906, this relator, who had been indicted by the grand jury for manslaughter in the first degree, was tried in the continued November term, which trial resulted in her 'conviction; after her conviction the defendant, for the first time, objected to the jurisdiction of the court, on the ground that the term had ended with the month of November or upon the conclusion of the-trial which had been commenced during that month, and the court was, therefore, without jurisdiction, to commence a new trial after the commencement of the December term of the Supreme Court, and then moved for arrest of judgment on this ground. That motion having been denied, the relator obtained; a- writ of habeas- corpus, claiming that the court had no jurisdiction to try the relator and asking that she be discharged. Upon the hearing at the ■ Special Term this writ of habeas corpus was dismissed and the relator appeals.

It is not disputed but that the term of the Supreme Cqurt was properly appointed by the Appellate Division in pursuance of the authority contained in the 6th article of the Constitution and section 1132 of the Code of Civil Procedure. It was presided over by a justice of the Supreme Court as provided by the Constitution assigned to preside over that term by the Appellate Division of this department. There can be no question, therefore, but that it was a legal court legally constituted and competent to try this relator for the ofiense charged, unless it ceased to be a term of the Supreme Court on the 1st Monday of December, 1906, when the December term of the court was a])pointed to be held, ormpon the completion of a trial that was unfinished at that time. There is no provision in the Constitution or in the Code of Civil Procedure which limits the duration of a term of the Supreme Court once duly appointed to be held, and the duration of the term was not limited by the appointment for this term made by the Appellate Division of this department, It is true that on the first Monday of December a new Trial Term was appointed to be held in the county of New York, but in the absence of an express provision of the Constitution or the law of this State, there appears to be no reason why a new term should, of itself, terminate a term theretofore established. The provisions of section 45 of the Code of Civil Procedure and section 432 of the Code of Criminal Procedure which provided that a term of the court can be continued notwithstanding.the expiration of the time appointed for the term to continue a trial, are intended to apply to cases where a time is fixed for the expiration of the term either by some express provision of law or by the authority authorized to appoint the terms of courts. As there was no time fixed at which the November term of the Trial Terms of'the Supreme Court should end, the term ■ continued until regularly adjourned by the justice designated to hold the term, or. in his absence, some other justice of the Supreme Court. In the county of New York there had been thirteen Trial Terms of the Supreme Court appointed for the month of November, and also thirteen Trial Terms of the Supreme Court appointed for the month of December. Of these, Part 1 of the Trial Term was designated as the term for the transaction of criminal business. But, as before stated, there Was nothing either in the Constitution or the statute or in the appointment of the terms Which provided when a term thus established should terminate, and thus each term continued until it was regularly adjourned without day.

If legislative authority was necessary in the absence of a prohibition, we think that is furnished by section 232 of the Code of Civil Procedure, which provides that Two or more Trial Terms may be appointed to be held a/nd may be held at the same time in any county. A Trial Term in any county may be held in two or more parts, and a jury panel may be summoned to serve in each part, or jurors may be drawn from one panel.” Provision, is here expressly made for the holding at the same time of two or more Trial Terms in the same county, and thus, under the system .established in this State, there can be no objection to a continuance of one term of the Supreme Court after a new term has commenced. The right of a term of the Supreme Court to continue its term from day to day is expressly recognized in People v. Sullivan (115 N. Y. 185), for it was there held that there is an inherent power in the court to adjourn its proceedings from day to day as long as it is necessary ..to finish the business legitimately brought before ,it, unless by the terms of some statute its existence, is sooner brought to a close. And this same principle was affirmed in People v. Youngs (151 N. Y. 210).

The appellant relies upon authorities from other States which have held that a term of the court ended upon the commencement of a new term, but this is put upon the express ground that otherwise two terms of the'same'court would be held at the same time. But in this State the Legislature has expressly overcome this objection . by allowing two terms of the same court to be held at the same time. I think, therefore, the Objection is without merit and ■ that a term of the Supreme Court once established as provided by the Constitution and the Code of Civil Procedure, continues until it is adjourned without day, and the fact that in. the meanwhile, another term'of the court is appointed to be held has po effect'upon the continued term.

The relator also claims that the court lost jurisdiction to try the .relator because, during the trial,, the accommodations in, the Criminal Court Building being inadequate for the work to be done, continued the trial in one of the court rooms of the County Court House in-which it has been the custom-to hold the terms of the Supreme Court in which civil cases were tried. But both the Criminal Court Building and the County Court House constituted the court house in the county of Hew York. These Trial Terms "of the Supreme Court were appointed to be held at the court house in the county of Hew York. A person indicted for crime has no constitutional right to be. tried in one court room rather than in another in the same county, and there could be no possible disadvantage to the relator, and none is alleged, in the change of court rooms,, whether the rootiis were in One or more buildings! We think the objection entirely without merit. The time has passed' in this State when a person indicted for crime, having been tried by' a court organized as required by the- Constitution, presided over by a judicial officer duly elected to preside, and where all the rights of the accused have been carefully preserved and guarded, may have his conviction set aside upon a technical claim, such as that presented. The case of Northrup v. People (37 N. Y. 203) has no application. There the prisoner was entitled, to he tried by a jury drawn from the inhabitants of the town in which the court was appointed to be held, and the justice in adjourning the trial from one town to another town of the same county and drawing a jury from the town to which the trial had been adjourned violated a right of the prisoner which the court held required that a new trial should be granted. There was' thus a very' different question from, that presented upon this appeal. But whatever was held in that case, under the present law of this State the substantial rights of a prisoner accused of crime are considered, and mere technical objections are not allowed to invalidate a judgment • entered after a judicial" proceeding in which the rights of the i accused have been fully protected, and the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. (Code Crim. Proc. § 542.) It is also quite apparent that this question cannot be raised by habeas corpus.' The relator is held under a judgment of the Supreme Court of the State of Hew York based upon a conviction by a jury of the crime of manslaughter in the first degree. If the judgment was for any reason1 irregular the proper proceeding was by a motion for arrest of judgment, or by an appeal from the judgment. If there was a mistrial, in no event would the relator be entitled to a discharge. These objections were mere irregularities which were waived, as no objection was taken by the relator at the time. In any aspect of the case the writ of habeas corpus was properly dismissed.

It follows that the order appealed from must be affirmed.

Patterson, P. 3., McLaughlin, Laughlin and Houghton, 33., concurred.

Order affirmed. Order filed.  