tried and determined the case, subject, however, to the right of the defendant, to annul the conviction, by appealing to the court of general sessions. It is provided in this respect, by the revised statutes, that in hearing and determining an accusation cognizable by it, the court of special sessions in NewYork shall proceed in the same manner as the other courts of special sessions in the state, except as to the summoning of a jury, and shall sentence the offender upon conviction; that any person, however, so sentenced, without having demanded a trial by jury, may appeal from the sentence to the court of general sessions; that the appeal must be made at the time sentence is pronounced, and that thereupon the conviction shall be void; that the court of special sessions shall enter the appeal upon its minutes, and shall proceed, in the same manner as if no such trial had been had, to take a recognizance from the accused, with sufficient sureties, to appear at the general sessions, or in default of giving the recognizance, shall commit him to prison, and shall take the same measures to insure the attendance of the witnesses in behalf of the prosecution, at the court of general sessions, as in other cases; and that the court of general sessions shall proceed, in every such case, by indictment and other proceedings, in the same manner as if no such trial or conviction had been had. 2 R. S., 3d ed., 802, 803, sec. 29-33.

This incongruous proceeding, by which the defendant, after having taken his chance af an acquittal by the court of special sessions, may, by his own act, vacate a conviction, was introduced for the purpose of obviating the constitutional objection to the trial of the case without a jury. It seems to the Commissioners, that this can be better as well as less awkwardly effected, by providing for the demand of a jury in the first instance, and that if it be demanded, the jurisdiction of the court shall cease, and the same proceedings be had in respect to an examination, and holding the defendant to answer or discharging him, as in ordinary cases triable at the sessions. This is done by sections 812 and 813; the former of which provides, in addition, that the defendant may be tried by the police court, when he requests to be so tried, as well as when he does not demand a jury.

The other provisions of this title are sufficiently explained in the note to each section.

§ 811. The police courts, in the city and county of New-York, must proceed upon a charge for a public of fence, in the manner prescribed in the last title, except as provided in the next seven sections.

§ 812. When a police court, in the city and county of New-York, has jurisdiction of the offence, as provided in section 56, it must proceed to the trial, in the following

cases:

1. When the defendant has requested to be tried by a police court:

2. When, (not having made such request, and after having been required by the magistrate before whom he was brought, to give bail for his appearance at the next court of sessions, he has omitted to do so for twenty-four hours after being so required,) a jury is not demanded by him, on being brought before the court for trial.

§813. If, in the case mentioned in the second subdivision of the last section, a jury be demanded, the magistrate before whom the defendant was originally brought, must proceed to the examination of the charge. and hold the defendant to answer, or discharge him, as provided in sections 187 to 220, both inclusive.

§ 814. The trial must, in all cases, be before the court without a jury.

Substantially the same as 2 R. S. 3d ed. 802, sec. 29.

§ 815. Subpoenas for witnesses, and the certificate of the judgment, must be signed by the clerk of the court, who must also enter all the proceedings of the court, and the sentences upon convictions, in a book of minutes, and when necessary, certify the proceedings of the

court.

Conformable to 2 R. S. 3d ed. 803, sec. 34, 35.

§ 816. Fines, imposed by the court, must be received by the clerk, if paid before committal in execution of the judgment. He must every thirty days, render to the comptroller of the city, accounts of the fines imposed and received by him, and of the expenses attending the court.

Taken from 2 R. S. 3d ed. 803, sec. 39.

§ 817. All fines, not paid to the clerk, as provided in the last section, must be received by the sheriff of the city and county of New-York; who must, within thirty days thereafter, pay them to the comptroller of the city, in the same manner as he is required to pay fines imposed by the court of sessions, and received by him.

Founded upon, but slightly varied from 2 R. S. 3d ed. 803, sec. 36.

§ 818. No transcript of a conviction, had in a police court in the city and county of New-York, need be certified or filed; but a copy of the minutes of the convic

tion, certified by the clerk, is conclusive evidence of the

facts coutained therein.

Conformable, in its general spirit, to 2 R. S. 3d ed. 804, sec. 47.

TITLE III.

OF APPEALS FROM THE POLICE COURTS.

SECTION 819. Judgment of police court, reviewable only upon appeal to the ses

sions.

820. Appeal, for what causes allowed.

821. Appeal, how taken.

822. How allowed.

823. Discharge of defendant from custody, upon undertaking.

824. Undertaking, when and with whom filed.

825. Delivery of affidavit, and allowance of appeal, to magistrate or clerk of police court, within five days after allowance.

deemed taken.

826. Return, when and how made.

827. Compelling return.

828. Ordering and compelling further or amended return.

829. Appeal, by whom and how brought to argument.

Appeal then

830. If not brought to argument, as provided in last section, to be dismis

sed, unless continued for cause shown.

831. Service of return on district attorney, and consequences of failure. 832. If brought to hearing by defendant, appeal must be argued, though no one oppose; if by district attorney, judgment to be affirmed, unless defendant appear.

833. Appeal to be heard on original return.

834. What judgment may be rendered.

835. Judgment to be entered on the minutes.

836. Order, upon judgment for affimance.

837. Order, upon judgment of reversal.

838. If new trial ordered, to be had in court of sessions. Proceedings

thereon.

839. Proceedings to carry judgment upon appeal into effect, to be had in

court of sessions.

840. On judgment of court of sessions, defendant may appeal to supreme court. His admission to bail.

841. Judgment of supreme court upon appeal, final.

842. Proceedings to carry into effect judgment of supreme court.

This title entirely changes the mode of appeal from a judgment of conviction in a court of special sessions, as well as the proceedings upon it and its effect. The judgment must now be reviewed by the supreme court, upon certiorari, which must be applied for to a judge of that court, or an officer

authorized to perform the duties of a judge in vacation, within ten days after the conviction, upon an affidavit specifying the supposed errors in the proceedings or judgment complained of. If the officer be satisfied that there is error, he must allow the writ; but where there has been a jury trial, it cannot be allowed on the ground that the verdict was against evidence. The writ and affidavit must be delivered to the magistrate, within ten days after the allowance, and within twenty days after that time, the magistrate must make and file. his return to the matters stated in the affidavit. He may be compelled by mandamus, to make this return, or to amend and perfect it. The certified copy of the certiorari, affidavit and return, must be served by the defendant upon the attorney general, with at least four days' notice of argument; and the supreme court must then proceed to hear the parties, and give judgment upon the return.

If, at the time of the conviction, the defendant notify the magistrate that he intends to remove the conviction by certiorari, the magistrate must take security from him, if offered, to appear at the next court of general sessions, and abide its judgment, and must thereupon suspend the execution of the sentence; which, however, he is required to pronounce and enter upon his minutes. The court of sessions then has power to continue the recognizance, or take a new one, until the decision of the supreme court. If the conviction be reversed, the supreme court must award a writ of supersedeas for the discharge of the defendant; but whether reversed or affirmed, if the defendant have given security for his appearance at the court of sessions, the judgment must be remitted to that court; which, upon reversal, must discharge the defendant, and upon affirmance, must proceed to execute the judgment of the court of special sessions, or to sentence the defendant, if it have not already been done. If the prosecu tion of the certiorari be unreasonably delayed, the supreme court may quash it, and remit the proceedings to the court of sessions, which is required to proceed as upon a judgment of affirmance.

This is a brief summary of the practice, as it now exists, in relation to appeals from the courts of special sessions, as taken from 2 R. S. 3d ed., 805, 806.

In place of this cumbrous and inconvenient practice, the Commissioners propose, by this title, to substitute one which they deem much more simple and practical in its character.