
    The People, Resp’ts, v. Benjamin F. Jewett, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    1. Criminal law—Appeal.
    The only allegations of error which can be considered by the court on appeal from a court of special sessions, are those alleged in the affidavit upon which the appeal is allowed.
    8. Same—Special sessions—Amendment op sentence.
    Defendant was convicted of assault in a court of special sessions, and sentenced to fine and impr sonment, on Saturday night; but on Sunday, on the solicitation of defendant’s counsel, the court undertook to modify the sentence by imposing a fine of $75, without imprisonment. On Monday, learning that his action on Sunday was probably void, he gave the original certificate to the constable. Held, that the jurisdiction of the court ceased with the sentence and issue of the certificate; that the subsequent proceedings were void, but did.not affect the validity of the original judgment or the certificate issued at that time.
    Appeal by the defendant from a judgment of the court of sessions of Wyoming County, .affirming the judgment of a court of special sessions of the town of Genesee Falls, convicting the defendant of the crime of assault in the third degree.
    
      H. H. Relyea, for app’lt; G. W. Botsford, Dist. Att'y., for resp’ts.
   Dwight, P. J.—

Counsel for the appellant in his brief and argument in this court propounded several alleged errors which were not mentioned in the affidavit presented to the county judge upon which the appeal to the court of sessions was allowed. Code of Grim; Pro. § 751. These allegations of error could not properly have been considered by the court from whose judgment this appeal is taken, nor will they be considered here. The statute above cited requires that the affidavit of appeal must state “ the facts showing the alleged errors in the proceedings or conviction complained of,” and by provisions of the following section (752) it is only when, in the opinion of the-judge to whom the affidavit is presented, “ the question arising on the appeal should be decided by the court of sessions,” that the appeal will be allowed. Moreover, by the provisions of § 756 of the same statute, it is only to the matters stated in the affidavit ” that the magistrate or court rendering the judgment is required to make return.

Under these several provisions of statute it has been well held that it is only the grounds of error alleged in the affidavit which will be considered on the appeal so allowed. People ex rel. Baker v. Beatty, 39 Hun, 476 ; People v. McGann, 43 id. 55 ; 6 St. Rep., 541.

In this case the only allegation of facts as ground of error, contained in the affidavit, which requires to be considered, is to the effect that after the court of special sessions had sentenced the defendant to fine and- imprisonment, on the rendition of the verdict on Saturday night, the justice who held the court assumed to re-open it on the next day (Sunday) and revoked the former sentence and then sentenced the deponent to pay a fine of $75, and stand committed until paid, etc.; and then and there delivered a commitment or certificate of conviction accordingly to a constable of the town, and the errors alleged are that such, “ conviction and sentence are void and of no effect, for the reason that the court has no power to fine the defendant to exceed $>50: under §717 of the Code of Criminal Procedure, and (second) no right to sentence defendant on Sunday, and (third) no right to revoke his sentence in any manner'.”

It is quite true that the sentence and • certificate of conviction here referred to are “ void and of no effect,” for the reasons, or some of them, above stated; but because they are so void and of no effect they do not affect the valid judgment which was pronounced on Saturday and the proper certificate of conviction which was made out and signed on the same day, and was delivered to the proper officer on Monday morning.

The facts as they appear by the return and further return of the justice, are as follows: The trial of the defendant was concluded and the verdict of the jury rendered on the evening of Saturday, August 13. At that time judgment was pronounced sentencing the defendant to pay a fine of fifty dollars and to be imprisoned in the county jail for the period of thirty days, and at the same time a certificate of such conviction w&s made out and signed by the justice, but at the request of the defendant and his counsel was not delivered to the officer that night, and the defendant was permitted to go at large for the time being. That night and the next day the justice was urged by the defendant’s counsel to remit the sentence of imprisonment and instead of it to increase the amount, of the fine, which, it was promised, should be immediately paid. On Sunday the justice, induced by the persuasion of the defendant’s counsel, and his advice that it was competent and lawful to do so, assumed to modify the sentence so as to impose a fine of seventy-five dollars, without imprisonment except until the fine was paid, and to make out and sign what purported to be a new certificate of conviction and to deliver it to a constable, but with the direction not to take the defendant into custody until Monday at three o’clock in the afternoon ; this time being given, at the request of the defendant’s counsel, to enable him to raise the money with which to pay the fine of seventy-five dollars.

But on _Monday morning the justice, having learned that the whole of the action of Sunday was probably “ void and of no effect,” withdrew; the void certificate of conviction from the constable and delivered to him the valid certificate which was made out on Saturday, and the defendant was arrested thereon.

It will be seen that there is nothing in this narrative which impugns in any degree the validity and binding effect of the judgment pronounced on Saturday evening or of the certificate of such conviction made out at that time. Both were, so far as- appears by the record before us, entirely regular and valid. The defendant stood lawfully convicted of the crime with which he was charged, lawfully sentenced to a fine and imprisonment which were within the limits of the statute, and a certificate of such conviction and sentence was duly prepared and was subject to be executed whenever delivered to the proper officer.

This was the end of the jurisdiction of the court of special sessions over the case. That court, organized pro hac vice, thereupon becamq functus officio and the justice who had held it had no power to reorganize or re-open it for any purpose whatever in connection with this case. All the proceedings of Sunday were without jurisdiction and were, indeed, void and of no effect. Lattimore v. People, 10 How Pr., 336; People ex rel Cook v. Smith, 28 St. Rep., 306. The valid judgment in the case, pronounced on Saturday, was unaffected thereby and was properly affirmed by the court of sessions.

It follows that the judgment of the last named court must also be affirmed.

Judgment and conviction of the court of sessions of Wyoming county appealed from affirmed, and case remitted to that court to proceed therein.

Lewis, Macomber and Haight, JJ., concur.  