
    Nelson v. The People.
    The legislature may constitutionally designate, or provide for the designation of, Justices of the Peace to sit in the Courts of Sessions by any law-general or special.
    Accordingly held, that a Court of General Sessions was properly constituted whore the justices were designated by name in a special act of 1860, and were deficient as to one of the qualifications required by the general law (ch. 470 of 1847, §34).
    Justices of the sessions are not required to take any official oath other than that which they take as justices of the peace.
    Wkit of error to the Supreme Court. The plaintiff in error was indicted at the Otsego General Sessions. The indictment contained eight counts. The eighth count charged that the prisoner, with intent feloniously to do bodily harm to one Allanson, made an assault on him with a certain sharp, dangerous weapon to the jurors unknown, and other outrages then and there did, &c. The prisoner was found guilty on this count. On error, the Supreme Court affirmed the conviction.
    When the trial was moved in the Court of Sessions, and before the jury was impanneled, the prisoner by his counsel moved to quash the indictment, because that court, as organized, had no authority or jurisdiction to try the indictment.
    
      This motion was made upon the following admitted facts: The trial was moved August, 1860, before Levi C. Turnen County Judge, and Harvey W. Brown and John W. Bichardson, Justices. Brown had been elected a Justice of the Peace in the spring of 1859, for four years from the first of January, 1860; and he was appointed in November, ■ 1859, to fill a vacancy in that office. Biehardson had been elected a Justice of the Peace in 1855, for four years from the first of January, 1856, and again in March, 1859, for four years from January 1st, 1860; and in November, 1859, both Brown and Biehardson were designated by the electors of Otsego as Justices of the Sessions for the year 1860, and both took the oath of office as such Justices of the Sessions before the 1st day of January, 1860.
    The District Attorney produced and read in evidence an act of the legislature of this State passed February 4th, 1860, entitled an act relative to the Justices of the Peace of Otsego county, designated and elected to hold Courts of Sessions in said county at the general election in 1859. It designated Brown and Biehardson as the two Justices of the Peace to hold Courts of Sessions for 1860, authorizing and empowering them to act as such with the same force and effect as if each had two years to serve as Justices of the Peace, when designated by the electors as Justices of the Sessions in November, 1859; and that they might take the oath prescribed by the Constitution at any time before the first day of March, 1860. The motion to quash the indictment was denied; and the prisoner, by his counsel, duly excepted.
    The prisoner, by his counsel, moved to set aside and quash the indictment, on the ground that several separate and distinct offences with different punishments were charged therein. The court denied the motion, and the prisoner excepted.
    The counsel for the prisoner then asked the court to compel the District Attorney to elect upon which count or charge in' said indictment he would try the prisoner. The court refused, and the prisoner excepted.
    The evidence showed that the prisoner and the prosecutor, fought bv arrangement, in a room without witnesses. The prosecutor was very badly cut in the face, but whether with a knife—as was charged in the seventh count of the indictment —or with some other instrument, was uncertain.
    At the close of the evidence, the District Attorney gave notice that he abandoned the first six counts, and only claimed a conviction on the last two: and the court charged the jury on the last two counts.
    The jury retired, and after consultation came into court, and on being called upon for their verdict, answered: “We find the defendant guilty of assault and battery with intent to do bodily harm with some sharp, dangerous instrument.” The court refused to receive the verdict; and directed the jury to amend it, and if they intended to find the defendant guilty of the offence charged in the seventh and eighth counts in the indictment, to reconsider their verdict and respond directly to those counts; to which refusal to receive, and direction to amend, the counsel for the defendant did then and there object and except. Whereupon the jury consulted together in the box, without leaving court, and after such consultation the foreman announced that the jury could not agree to find the defendant guilty under the seventh. count. The court then directed them to retire again; to which the defendant, by his counsel, did duly object and except. The jury again retired, and after being absent a few minutes returned and rendered the following verdict: “We find the defendant guilty of the offence charged in the eighth count of the indictment;” to which finding and verdict the defendant excepted. The judgment having been affirmed at general term in the sixth district, the prisoner brought error to this court.
    
      Burditt & Lynes, for the plaintiff in error.
    
      E. Countryman, District Attorney, for the People.
   James, J.

The objection that the Court of Sessions as organized had no authority or jurisdiction to try the prisoner, was not well taken. The Constitution (Art. 6, § 14) declares that “ the County Judge with two Justices of the Peace, to be designated by law, may hold courts of sessions,” &c. The County Judge and two Justices of the Peace constituted this court. But it is insisted that the justices designated were not qualified according to law, because chapter 280, section 14 of the Laws of 1847, as amended by chapter 470, section 34 of the laws of the same year declare that no Justice of the Peace . shall be designated as Justice of the Sessions unless he shall be entitled to serve as a Justice of the Peace during such year by virtue of the election under which he shall be acting as such justice at the time of his designation; and neither of the persons who sat on the trial of this cause as justices were within the requirement.

A sufficient answer to this objection is, that Brown and Eichardson, if not Justices of the Sessions de jure, were at least Justices of the Sessions de facto, with color of legal title; and, as was said by Bronson, J., in the People v. White (24 Wend., 525), “ no principle is better settled than that the acts of such persons are valid when they concern the public, or the rights of third persons who have an interest in the act done.” It would be impossible to maintain the supremacy of the laws if individuals were at liberty, in this collateral manner, to question the authority of those who, in fact, hold public offices under color of legal title.

But conceding Brown and Eichardson as not eligible to designation as Justices of the Sessions, their selection as such was not, as the appellant’s counsel seems to suppose, a violation of the Oonstitution. The Constitution only requires that Justices of the Sessions shall be Justices of the Peace. The power to provide the mode of designation rested with the legislature, which might be declared by general, or special laws. The requirement that persons selected as Justices of the Sessions should have a certain period to serve as Justices of the Peace when designated, was imposed by the statute and not by the Constitution. Being a legislative requirement, the legislature had the power to modify or repeal it as to the whole State, or as to any single county thereof; and having modified it as applicable to Otsego county for the year 1860, the designation of Brown and Richardson was lawful, and those persons were Justices of Sessions de jure, as well as de facto.

The act of modification declared that said justices might take the oath of office prescribed by the Constitution before the first day of March, 1860, and it was further objected that it was not shown they had done so. The proof rested upon the prisoner; and in the absence of proof to the contrary, the presumption is that officers, acting as such, have taken the proper oath. (1 Hill, 159; 21 Wend., 47; 3 Hill, 75; 22 Barb., 656.) But Justices of the Sessions are not required either by the Constitution or the statute to take any official oath. They take the oath of office as Justice of the Peace. On being designated they take their seats as Justices of the Sessions, by virtue of their office of Justice of the Peace. A further answer is, that this point was not made on the trial, and, as it might have been obviated by proof, it cannot be raised on this appeal. (2 Kern., 486.)

All the eight counts in the indictment related to the same offence or criminal transaction. The first, second, third and sixth counts charged the prisoner with an assault and battery with intent to kill; the fourth and fifth counts with an assault and battery with intent to maim; and the seventh and eighth counts with an assault and battery with a sharp and dangerous weapon to do bodily harm. The offences charged in the seventh and eighth counts are given by the Laws of 1854, chapter 74, and it is therein declared that upon any indictment against any person for an assault with intent to kill, it shall and may be lawful for .the jury to find such accused person guilty of an assault according to the provisions of said act.

But there is no objection to a prisoner being charged with the same offence in different ways, by several counts in the same indictment in order to meet the facts of the case (Barb. Cr. Law, 340; 12 Wend., 425); and it is a matter entirely within the discretion of the court whether it will compel the prosecutor to elect upon which count he will proceed. (3 Hill, 169; 1st Park. Cr. R., 154.) Such election can only be claimed on motion, when the several counts charge separate and distinct offences.

The prosecutor, at the close of the case, having withdrawn from the consideration of the jury all the counts but the seventh and eighth, the prisoner could only be convicted under one or both of these counts. The finding of the jury as first rendered to the court was not in the language of the statute nor in the language of either count, and perhaps did not show> that any offence had been committed. ' At all events, the court did right to refuse the verdict, and send the jury back with instructions to respond to the counts under which the cause was submitted to them.

Whether, or not, the evidence was sufficient to show that the weapon used by the prisoner was sharp or dangerous, or that it was the intent of the prisoner to do bodily harm with a sharp and dangerous weapon was solely, a question of fact for the jury, and cannot be reviewed in this court.

None of the exceptions made by the prisoner were well taken, and therefore the judgment below is affirmed.

All the judges concurring, '

Judgment affirmed.  