8 Barb. 384 | N.Y. Sup. Ct. | 1850
The defendant was tried before a court of special sessions in December, 1848, held before a justice and a jury, for the crime of petit larceny. The trial was commenced on the 30th of December, and the cause was submitted to the jury at two o’clock in the morning of Sunday the 31st of December. The jury rendered their verdict about three o’clock in the morning, finding the defendant guilty. The justice took a recess until Monday morning and then pronounced judgment on the verdict. The error complained of is, that the court was held open on Sunday. The statute is in these words, (2 R. S. 275, § 7.) “No court shall be opened, of transact any business, on Sunday, unless it be for the purpose of receiving a verdict or discharging a jury; and every adjournment of a court on Saturday, to another day, shall always be to some other day than Sunday, except such adjournment as may be made after a cause has been committed to a jury. But this section shall not prevent the exercise of the jurisdiction of any single magistrate, when it shall be necessary in criminal cases, to preserve the peace, or to arrest offenders.” The question is what period of time is meant in the foregoing section by the term Sunday. Coke says, that at common law the day is divided into the natural and the artificial day; the natural, consisting of twenty-four hours, and the artificial of the space intervening between the rising and setting of the sun. Different nations begin the day at different times. The Jews, Chaldeans and Babylonians ■ begin the day at the rising of the sun ; the Athenians at the fall; the Umbri of Italy at midday; the Egyptians and Romans from midnight. (Co. Litt. 135, a, b.) The law of England in many cases, follows the Roman in this respect; and for certain purposes also, it regards only the solar or artificial day. (Ib.) The same is true likewise of the laws of this state. By the common law all judicial proceedings are prohibited on Sunday. (8 Cowen, 30, per Savage, Ch. J. Johnson v. Day, 17 Pick. 109, per Wilde, J.) The trial of a cause is a judicial act. No part of it can be had on Sunday, except what is specifically allowed by the statute, namely, the receiving of the verdict.
The foregoing cases from our own reports were prior to the revised statutes. It is presumed that if the legislature had intended to restrict the prohibition with regard to judicial proceedings on Sunday, to the artificial day between sunrise and sunset, they would have said so, in revising the law, in terms that could not be mistaken. As the statute now stands, it clearly relates to the whole natural day. In Vanderwerker v. The People, (5 Wend. 530,) the question arose under the revised statutes, on a certiorari to a court of special sessions. The justices held their court open from Saturday till Monday, for the return of a second service, and this was complained of as a violation of the statute. But the court held, that merely continuing the cause, over Sunday, was not opening a court to transact business on Sunday, within the meaning of the act.
The cases referred to from our sister states were all based upon the local law. Thus in Fox v. Abel, (2 Conn. Rep. 541,) while it was conceded that at common law the natural day extends from midnight to midnight, yet it was decided by a majority of the court, that their statute, prohibiting the service of process on the Lord’s day, had reference only to the solar day. This opinion was based upon the peculiar phraseology of some of the sections of the act. So, in Massachusetts, in Johnson v. Day, (17 Pick. 106,) a writ of attachment issued on Sunday after sundown, was held regular, because their statute of 1791, ch. 58, limited the time to which its prohibition extended, to the time included between the midnight preceding and the sunset-
The common law, it is said by Coke, (supra,) sometimes regards the solar day. Our own statutes sometimes adopt the solar day and sometimes only a part of it, Thus, at common law, a distress for rent service must be made in the day time and not in the night. (Co. Lit. 142. 3 Bl. Com. 10, 11.) And a demand of rent, in order to enforce a forfeiture, must be made a convenient time before sunset. (Id. 202, a.)
In the act respecting elections, (Laws of 1842, 109, 118,) the election is to be held but one day ; and by § 6 of art. 1, the poll is required to be opened in the cities, at sunrise, and in the several towns, at any time between sunrise and nine o’clock in the morning, and to be kept open till the setting of the sun. Hence the day for voting is the artificial day. By the 4th section of title 1, no civil process is permitted to be served on any elector entitled to vote, in such city or town, on the day on which such election shall be held. And by the 5 th section, no court shall be opened or transact any business in any city or town on the day such election shall be held therein, unless it be for the purpose of receiving a verdict, or discharging a jury, or the naturalization of foreigners; and every adjournment of a court in such city or town on the day next preceding the day any such election shall be held therein shall always be to some other day than the day of such election, except such adjournment as may be made, after a cause has been committed to a jury. These
It is urged that the objection can not be taken on this certiorari, because it is the common law certiorari and brings up nothing but the record, technically so called. An intimation to that effect was suggested by Savage, Ch. J. in The People v. Vanderwerker, (5 Wend. 530.) If this were merely a common law certiorari, it is granted that nothing but the record is before us. But it is a certiorari expressly authorized by statute, to obtain which the party applying must make an affidavit '■'■specifying the supposed errors in the proceedings, or judgment complained of.” (2 R. S. 717. §§ 42, 43.) Before allowing the writ, the officer to whom the application is made must be satisfied that some error has been committed in the proceedings or the judgment; but it shall not be allowed on the ground that the verdict of the jury was against evidence. (Id. § 44.) The writ and original affidavit are required to be served on the magistrates, who are required to make a special return to all the matters specified in the affidavit accompanying the writ. And by a subsequent section this court is required to hear the parties and give judgment on the return to such writ. Any error in the proceedings or judgment, whether in the record or in receiving or rejecting evidence, or the like, may doubtless be examined by this court. They are probably restricted from reversing the conviction on the ground that the verdict is against "the weight of evidence. (Compare § 44 to 49. The People v.
But again, the continuances form a part of the record, and they must show on what day the cause was submitted to the jury. This court, in The People v, Vanderwerker, (supra,) passed upon an objection like the present, notwithstanding the chief justice intimated that they could not look out of the record.
We entertain no doubt that the conviction was wrong for the error of submitting the cause to the jury on Sunday morning, and that the conviction should be reversed.
Conviction before special sessions reversed,
So is the service of a writ on Sunday, by the defendant’s indorsing his appearance. (Vanderpool v. Wright, 1 Cornell's Ref. 209, 210, note a.)