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bail to be given, conditioned for the surrender of the said person, at a time shorter or longer than the time designated in the bail bond taken by the said magistrate, and if said person is in custody, may take bail conditioned for his appearance before said court, to be surrendered at such time as to said court may seem reasonable and proper.1

§ 28. COMPROMISING OFFENCES BEFORE INDICTMENT.

Where any person shall be bound by recognizance to appear, or shall be committed to prison on any charge for an assault and battery, or other misdemeanor, for which the injured party shall have a remedy by civil action, except such offences as are hereinafter specified, if the injured party shall appear before the magistrate who may have taken the recognizance or made the commitment, or before any judge of the County Courts, and acknowledge in writing that he has received satisfaction for such injury and damage, such magistrate or judge may, in his discretion, on payment of the costs which have accrued, by an order under his hand, discharge such recognizance, or supersede the commitment of the offender, and may in like manner discharge every recognizance which may have been taken for the appearance of any witnesses in such case.2

Every such order discharging any recognizance, shall be filed in the office of the clerk of the county, and every such order superseding the commitment of the offender, shall be delivered to the keeper of the jail where he shall be confined, who shall immediately discharge such offender on the receipt thereof.3

The above provisions do not extend to any charge for any assault and battery, or other misdemeanor, charged to have been committed: 1. By or upon any officer or minister of justice whilst in the execution of the duties of his office; or, 2. Riotously; or, 3. With an intent to commit a felony.

'Laws 1839, ch. 350, § 7; 2 R. S., 710, § 47.

22 R. S., 730, § 70.

Id., § 71.

SECTION III.

PROCEEDINGS SUBSEQUENT TO THE RETURN OF THE WARRANT WHERE THE OFFENCE CHARGED IS TRIABLE BEFORE A COURT OF SPECIAL SESSIONS.

Section XXIX.-GENERAL REMARKS.

XXX.-CUSTODY OF THE PRISONER PREVIOUS TO AND DURING THE TRIAL.

XXXI-PROCEEDINGS UPON CHARGE AND PLEA.

XXXII.-TRIAL WITHOUT JURY.

XXXIII.-WHEN JURY TRIAL TO BE HAD.

XXXIV.-SUMMONING THE JURY.

XXXV.-IMPANNELING THE JURY.

XXXVI.-NEW VENIRE.

XXXVII.-OATH TO JURORS.

XXXVIII-OF THE WITNESSES.

XXXIX.-PROOFS TO THE JURY, AND THEIR DELIBERATION.

XL.-VERDICT.

XLI.-PUNISHMENT ON CONVICTION.

XLII.-OF THE ACQUITTAL OF THE DEFENDANT, AND CONCERNING COSTS.
XLIII.-JUDGMENT HOW EXECUTED.

XLIV.-PAYMENT AND ACCOUNTING FOR FINES.

XLV.-RECORDS OF CONVICTION.

XLVI.-WHEN FILED.

XLVII.-CERTIFICATE-HOW FOR EVIDENCE.

XLVIII.-SPECIAL PROVISIONS IN RELATION TO COURTS OF SPECIAL SESSIONS IN THE CITY
AND COUNTY OF NEW YORK.

XLIX.-FEES OF JUSTICES IN CRIMINAL CASES, AND OF COURTS OF SPECIAL SESSIONS.

§ 29. GENERAL REMARKS.

The organization of courts of special sessions, the officers who are to hold the same, and the several offences of which they have cognizance, will be found treated of in the preceding pages of this book. In the first subdivision of this chapter, we traced the proceedings from the making of the complaint to the arrest of the offender and return of the warrant. In the second subdivision, we saw what proceedings were taken upon the return of the warrant where a court of special sessions had no authority to try the offender, and we now propose to review the proceedings upon the return of the warrant in cases where a court of special sessions has jurisdiction over the offence charged.

Many of the questions which arise upon a trial by jury in a court of special sessions, for instance the qualifications of jurors, the subject of challenges, the custody and conduct of the jury during their deliberations, are similar to those occurring upon a jury trial in the higher courts, and reference to those questions which are not found discussed in this chapter, is made to the same questions which will be found treated of in the chapter devoted

1 Vide page 80, ante.

to the trial of indictments in courts of record.1 Although many of the provisions of the statute give courts of special sessions exclusive jurisdiction to try certain offences, yet from the authorities already cited,2 it is obvious that two courses remain to be pursued by the defendant upon his being arrested and brought before a magistrate upon a criminal accusation, which courts of special sessions are empowered to try, and these are either to give bail to the next criminal court having cognizance of the offence, in the same manner as already spoken of in cases where the defendant has been arrested upon a criminal charge, which a court of special sessions has no power to try, or else to proceed and be tried by such court of special sessions in the manner pointed out by the statute.

The party arrested may at once waive any examination and give such bail. He may request to be tried by such court of special sessions; and in case he do not make such request to be tried, and after having been required by the magistrate, shall omit for twenty-four hours after such requirement to give bail for his appearance at the next criminal court having jurisdiction, the magistrate is to proceed as a court of special sessions and try the accused.

It is generally the practice among magistrates where a defendant does not, upon his own behalf, ask to give bail to the next criminal court having jurisdiction, for the purpose of having the charge against him presented to a grand jury, and thus have his trial in a court of record, before a common law jury, to proceed and try him before a court of special sessions, without requiring the prisoner to give bail, and waiting twenty-four hours for him to do so before proceeding to his trial as mentioned in the section of the statute above cited. This action, however, must be viewed as based upon the constitutionality of the acts of the Legislature, giving the courts of special sessions exclusive jurisdiction to try the offence charged; but the courts having decided the authority thus attempted to be conferred to be unconstitutional and void, it is presumed to be the better practice to follow the old provision of the statute and make the request for bail of the prisoner

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Peo. v. Kennedy, 2 Park., 312; Pco. v. Tonybee, 2 Park., 490.

before procceding to trial. It is not necessary for any magistrate to take the examination of any person brought before him charged with an offence triable before such magistrate, where such person shall elect to be tried before him.1

§ 30. CUSTODY OF THE PRISONER PREVIOUS TO AND DURING THE

TRIAL.

During the twenty-four hours allowed to a person to give bail, as provided by the statute, and during the time which shall elapse before the convening of a court of special sessions, the person charged may be committed to jail for safe keeping, or he shall continue in the custody of the officer arresting him as the magistrate issuing the warrant of arrest shall direct, and after the court of special sessions shall have convened, the prisoner charged shall be brought before it, and shall continue in the custody of the officer having him in charge until the termination of its proceedings.2

§ 31. PROCEEDINGS UPON CHARGE AND PLEA.

The court having met, shall cause the prisoner to be brought before it, and shall, as soon as may be, proceed to his trial. The charge made against the defendant, as stated in the warrant of arrest or commitment, shall be distinctly read to such defendant, who shall be required to plead thereto. The court is to enter his plea in the minutes of its proceedings to be kept by it.3

It is not required that the plea of the defendant should be in writing, although where other pleas than that of not guilty are introduced, it is better, for the sake of certainty, that they should be in writing. For the different kinds of pleas which may be made by a person charged with the commission of a criminal offence, reference is made to the discussion of that subject in the chapter entitled "of the practice upon the trial of indictments."4

The same defences may be set up by plea on the part of the prisoner in courts of special sessions as in courts of record, where the same or a similar state of facts exist. Thus, on a trial

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for an assault and battery, before a court of special sessions, a former trial and sentence cannot be given in evidence under a plea of not guilty. Under the plea of not guilty, the defendant can only give in evidence whatever negatives the allegation in the complaint, and matters of excuse or justification, and where, after pleading not guilty, anything occurs available as a defence, the defendant can only avail himself of it by a subsequent plea.1

§ 32. TRIAL WITHOUT JURY.

If the defendant plead not guilty, and no jury be demanded by him, the said court shall proceed to try such issue, and to determine the same according to the evidence which may be produced against and in behalf of such defendant.2

§ 33. WHEN JURY TRIAL TO BE HAD.

After the joining of such issue, and before the court shall proceed to an investigation upon the merits of the cause by the hearing of any testimony, the defendant may demand of such court that he be tried by a jury; upon such demand the court shall issue a venire, directed to any constable of the county or marshal of the city where the offence is to be tried, commanding him to summon twelve good and lawful men, qualified to serve as jurors and not exempt from service by law, and who shall be in no wise of kin either to the complainant or the defendant, to be and appear before such court, at a time not more than three days from the date of the venire, and at a place to be named therein, to make a jury for the trial of such offence.3

The several questions in relation to the qualification of jurors, the grounds of exemption from jury service, and of challenges to jurors, together with the method and manner of exercising the right of such challenge, are the same in these courts as in courts of record; except that in courts of special sessions the defendant's right of peremptory challenge extends to only two of the persons drawn as jurors. They will be found discussed in full in the subsequent chapter, concerning the trial of indictments in courts of record. To render a conviction before a court of

1 Peo. v. Benjamin, 2 Park., 201.

22 R. S., 712, § 8.

• 2 R. S., 712, § 9.

• Vide post.

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