5 Wend. 530 | N.Y. Sup. Ct. | 1830
By the Court,
The first objection taken is that the plaintiff in error was not examined when brought before the magistrate who issued the warrant, and that the complainant did not swear before the magistrate to the commission of a felony. In answer to this objection, it is to be observed that the return of the justices brings in review their proceedings as a court of special sessions, and not the previous proceedings before the justice who issued the warrant. Were those proceedings before us, I should say the justice erred in not pursuing the directions of the statute by examining the complainant and the defendant; but that error could not affect the proceedings of the court which was subsequently organized. It is not alleged that the warant did not
It is further objected, that after the discharge of the first jury, (he court had no power to issue another venire. The defendant had demanded a trial by jury, and when the first jury summoned for that purpose had been discharged on the ground that they could not agree, the court were bound to proceed and issue another venire. The defendant’s demand of a trial by jury had not been withdrawn, but remained; and the court could not legally try the defendant in any other manner.
It is also objected that the court was kept open on the Sabbath. The court make use of those terms, but they probably intended to convey the idea that they adjourned or suspended business until the return of the second venire on Monday. By the Revised Statutes, vol. 2, p. 275, it is declared that no court shall be opened or transact any business on Sunday, unless it be for the purpose of receiving a verdict or discharging a jury. It does not appear that this provision has been violated in this case, or that the court was actually opened or transacted business on Sunday. The justices considered it open, in contemplation of law, so far as not to lose jurisdiction of the case which was pending before them.
Another objection raised is, that it does not appear that the offence was committed in the county of Schoharie. This however is a mistake. The charge stated is that on, &c. at Sharon aforesaid, divers goods, &c. were feloniously taken, &c. Sharon had before been stated to be in the county of Schohaiie; but had there been no reference to the county, the court takes judicial cognizance of the towns in the state, and that the}7 are in the counties to which they belong by law.
The main point relied upon, however, is, that it is alleged no felony was in fact committed or proved. This question we are not at liberty to discuss. The Revised Statutes, vol. 2, p. 718, § 44, declare that no certiorari shall be allowed to remove proceedings from a court of special sessions, where there has been a trial by jury, upon the ground that the verdict of the jury was against evidence. If the certiorari cannot be allowed on that ground, the legislature surely intend
