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.

Its outline is analogous to that which they proposed to the legislature in their first report, p. 223–230, in respect to appeals from justices' and other inferior courts, and which was adopted in the code of 1848, sec. 301-320. Referring the legislature to the sections themselves, for a more full explanation of the change, and to the notes to some of them in which a portion of the existing practice is preserved, they will state concisely its principles and its leading details.

A judgment of conviction in a police court may be reviewed by the court of sessions of the county, upon appeal, and not otherwise. This appeal is not allowable, except for an error of the court, in the course of the proceedings or in the determination of the cause, and cannot be had in any case, upon the ground that the verdict of the jury was against evidence. For the purpose of appealing, an affidavit must be made within ten days after the judgment, stating the facts showing the alleged errors, and be presented to the county judge or a judge of the supreme court, or in New York to the recorder or city judge, who, if he think the question should be decided by the court of sessions, must allow the appeal, and upon the allowance, must admit the defendant to bail. The affidavit and allowance of the appeal must, within five days be delivered to the police court, which must,within ten days thereafter, make and file a return to the matters stated in the affidavit. The return may be compelled, or a further or amended return ordered, as by the present practice. When the return is made, the defendant may bring the appeal to argument, on at least five days' notice to the district attorney, instead of the attorney general, as required by the present practice. If he omit to do so, or to serve a copy of the return upon the district attorney, the appeal must be dismissed, unless, for good cause, the court otherwise direct. If the appeal be brought to a hearing, it must be argued, though no one appear to oppose; but if trought on by the district attorney, he may take judgment of affirmance, unless the defendant appear. [The reasons for this latter provision, are stated in the note to sec. 600, p. 279, which contains a similar provision, in respect to appeals in criminal actions prosecuted by indictment.] The appeal must be heard upon the original

return.

After hearing the appeal, the court must give judgment, without regard to technical errors or defects, which have not pre udiced the substantial rights of the defendant, and may