100 N.Y.S. 734 | New York County Courts | 1906
Section 515 of the Code of Criminal Procedure provides that the only method of reviewing a judgment or order in a criminal action or proceeding is by appeal.
Section 751 of the Code of Criminal Procedure provides how an appeal from a determination of a Court of Special Sessions, i. e., a criminal court held by a justice of the peace, shall be taken. “For the purpose of appealing, the defendant, or some one on his behalf, must, within sixty days after the judgment, or within sixty days after the commitment where the appeal is from the latter, make an affidavit showing the alleged errors in the proceedings or conviction or commitment complained of.”. Two appeals are contemplated, one from the judgment and another from the commitment. Prior to 1897 an appeal from the judgment had to be taken within ten days after the rendition'of the judgment; or within twenty days after the commitment, where the appeal was from the latter. Laws of 1897, chap. 39. In other words, a defendant can review either the judgment including the regularity of the proceedings which resulted in his conviction or the commitment, or, if his notice of appeal is broad or precise enough, both; but, upon an appeal from a judgment only, an error in the commitment cannot be presented for a review. It is somewhat doubtful in this case whether the appeal is broad enough to include a review of the commitment. The notice of appeal contains, with other matters, the following: “ Deponent says that he hereby appeals to the County Court of the county of Onondaga from the said conviction and sen-I ence;” and again: “ That said deponent was improperly and illegally convicted and sentenced. * * *
As the judgment presents no matter for reversal, the only matter to be considered upon this appeal is the error claimed to exist in the commitment, and the only error relied upon must be pointed out in the notice of appeal. People v. Giles, 152 N. Y. 136—141; People v. Jewett, 69 Hun, 550.
There are several irregularities in the commitment but, for the reason stated, they are not subject to review upon this appeal. The sole error presented is pointed out in the notice of appeal as follows: “ Deponent further says that the warrant and the commitment is void and illegal for the reason that it does not show that the said deponent was convicted of a crime, but it says the deponent was convicted of assault, but does not specify the degree thereof.”
Section 121 of the Code of Criminal Procedure provides the form of a certificate or record of conviction. It requires that the offense shall be briefly designated. In the case of People v. Gray, 61 How. Pr. 456, the defendant was convicted by a justice of the peace of the crime of “ assault and battery committed on Norman Potter,” and it was insisted, as a reason for the discharge of the defendant, that there is not now any such crime known to the law as assault and battery, as that offense is now styled and designated an assault in the third degree. The writ of habeas corpus was discharged and the defendant remanded, it being held by Mr. Justice Westbrook, before whom the matter came, that, as section 219 of the Penal Code, defines an assault in the third degree, “A person who commits an assault, or an assault and battery * * * is guilty of assault in the third degree,” and as the commitment used the same language, it was a sufficient description of the offense; that it was not necessary that it should be “ called by its technical name, providing the description of the act which constitutes the defense is clear
While it appears from the return of the justice that he made an intelligent and just disposition of the case on the merits, it is more important that a person shall not be deprived of his liberty, except in substantial compliance with the law, than that this particular defendant should remain a few days more in prison. .
For the reasons stated the judgment must be reversed and the ¡defendant discharged.
Judgment reversed.and defendant discharged.