
    The People, Resp’ts, v. Charles H. Carnrick, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Criminal law—Trial—Intoxication or dependant—Adjournment.
    The minutes returned by a city recorder holding a court of special sessions showed that the defendant was informed of his rights, under §§ 5? and 58 of the Code of Criminal Procedure, to have his case certified for prosecution by indictment, and waived them, and that the defendant's intoxication, if any, was not of such a degree as to incapacitate him from comprehending the statements made to him by the court. Held, that the judgment of conviction would not be disturbed on the affidavit of defendant that he was drunk, and the affidavit of his attorney that the recorder said the defendant was very drunk and that he seemed dazed.
    Appeal from a judgment of Fulton county court of sessions, affirming a judgment of conviction of the recorder’s' court of Gfloversville.
    
      Clark L. Jordan, for app'lt; William, Green (N. H. Anibal, of counsel), for resp’ts.
   Learned, P. J.

—The questions as to jurisdiction are disposed of in People v. Wilber argued at this term.

The defendant insists that there was an abuse of discretion in the refusal to adjourn on account of the absence of a witness. We think that the affidavit made by defendant for the purpose of obtaining such adjournment does not show so strong a case that we can hold that there was an abuse of discretion upon a matter which necessarily rests largely on the good sense of the trial court.

The defendant also insists that when arrested on the 28th of August he was not in a condition to plead on account of intoxication, and that he did not realize that he was waiving any rights under §§ 57 and 58 of the Code of Criminal Procedure. On the contrary, the minutes returned by the recorder show that the defendant was informed of those rights and waived them; and the recorder makes a special statement in his return that the defendant was informed of those rights, and that his intoxication, if any, was not of such a degree as to incapacitate him from comprehending the statements made to him by the court.

It is, of course, true that one may be in such a mental condition by reason of intoxication as to be incapable of making the request provided for by § 58. But unless there is very strong evidence to impeach the. correctness of the recorder’s return, we should accept it as correct. Here there is only the defendant’s statement and the affidavit of the counsel that the recorder said defendant was very drunk when brought before him, and that after the arrest defendant seemed to his counsel to be in a dazed condition.

No proceedings were taken, under § 758 Code of Criminal Procedure, to compel an amended return.

The evidence of the assault was abundant and was not contradicted. No defense was made by the defendant upon the trial

The judgment óf-the sessions is affirmed.

Landon and Matham, JJ., concur.  