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PART 1.

OF THE COURTS HAVING ORIGINAL JURISDICTION IN CRIMINAL

ACTIONS.

TITLE I. OF THE COURTS OF ORIGINAL CRIMINAL JURISDICTION IN

GENERAL,
II. OF THE COURT FOR THE TRIAL OF IMPEACHMENTS.
III. OF THE COURTS OF OYER AND TERMINER.
IV, OF THE CITY COURTS.
V. OF THE COURTS OF SESSIONS.
VI. OF THE COURTS OF SPECIAL SESSIONS AND POLICE COURTS.

TITLE I.

OF THE COURTS OF ORIGINAL CRIMINAL JURISDICTION IN

GENERAL.

§ 11. Of the courts of original criminal jurisdiction. The following are the courts of justice in this state having original jurisdiction of criminal actions :

1. The court for the trial of impeachments; 2. The courts of oyer and terminer;

3. The city courts of Brooklyn, Buffalo, Utica, Oswego and Hudson ;

4. The courts of sessions, in counties other than New York;

5. The court of general sessions in the city and county of New York ;

6. The courts of special sessions ; 7. The police courts.

The courts of special sessions and police courts are deemed inferior courts not of record, within the section of the Constituition which provides for the removal of justices of the peace and judges, or justices of inferior courts not of record, and their clerks, by such county, city or state courts as are designated by law; but for no other purpose.

New York Const., art. VI., SS 18, 19.

(a) Police justices under legislative control.--The legislature may aholish or abridge the tenure of office of a police justice.--(Coulter v. Murray 15 Abb. [N. S.), 129; Wenzler v. People, 58 N. Y., 516. )

(6) Courts are not public officers within the intent and meaning of the statute which prohibits the transaction of business in public offices after twelve o'clock on Saturdays. (People v. Kearney, 13 N. Y. State Rep., 246.)

TITLE II.

OF THE COURT FOR THE TRIAL OF IMPEACHMENTS.

SECTION 12. Its jurisdiction.

13. Members of the court.
14. Presiding judge.
15. Clerks and officers.
16. Seal of the court.
17. Time of holding the court.
18. Oath to members of the court.
19. Adjournments, etc.
20. Compensation of members and officers of the court.

$ 12. Its Jurisdiction. The court for the trial of impeachments has power to try impeachments, when presented by the assembly, of all civil officers of the state, except justices of the peace, justices of justices' courts, police justices and their clerks, for willful and corrupt misconduct in office. New York Const., art. VI. SS 1, 18.

$ 13. Members of the court. The court is composed of the president of the senate, the senators, or a majority of them, and the judges of the court of appeals, or a majority of them, but on the trial of an impeachment against the governor, the lieutenant governor cannot act as a member of the court. New York Const., art. VI. § 1; 3 R. S., 182, $ 1. $ 14. Presiding judge. The president of the senate, or in case of his impeachment, death or absence, the chief judge of the court of appeals, or in the absence of both, such other member as the court may elect, is the presiding judge of the court.

§ 15. Clerks and officers. The clerk and officers of the senate are the clerk and officers of the court for the trial of impeach

ments.

$ 16. Seal of the court.-The seal of the court for the trial of impeachments how deposited and recorded in the office of the secretary of state shall continue to be the seal of this court and must be kept in the custody of the clerk of the senate. Id. $ 4.

$ 17. Time of holding the court.-Upon the delivery of an impeachment from the assembly to the senate the president of the senate must cause the court to be summoned to meet at the capitol in the city of Albany, on a day not less than thirty nor more than sixty days from the day of the delivery of the articles of impeachment. 3 R. S., 183, § 10.

§ 18. Oath to members of the court.-At the time and place appointed, and before the court proceeds to act upon the impeachment, the clerk must administer to the presiding judge, and the presiding judge to each of the members of the court then present, an oath or affirmation truly and impartially to try and determine the impeachment; and no member of the court can act or vote upon the impeachment, or any question arising thereon, without having taken this oath or affirmation. 3 R. S., 183, § 14.

$ 19. Adjournment, etc.-The court may adjourn from time to time and hold its sessions at such places as it may determine, but no more than two sessions of the court can be held during the recess of the legislature in any one year. Id. § 15.

$ 20. Compensation of members and officers of the court.—The writ and process of the court must be signed by the clerk and tested in the name of the president of the senate. The president of the senate and each senator are entitled to receive for their services and expenses while actually attending the court the same rate of compensation as an associate judge of the court of appeals is entitled by law to receive for his services and expenses as such judge for the same time. The other officers of the court, excepting the judges of the court of appeals, are entitled to the same compensation for their attendance thereon, and for travelling to and from the place where it is held, as is allowed them for attending a meeting of the senate, but no such compensation shall be received for attending the court during a session of the legislature.

Id. SS 7, 9.

TITLE III.

OF THE COURTS OF OYER AND TERMINER.

SECTION 21. Court of oyer and terminer in each county.

22. Its jurisdiction.
23. By whom held.
24. Writ or process.
25. Clerk.

$ 21. Court of oyer and terminer in each county.—There is in each of the counties of this state, except that for this purpose Fulton and Hamilton are deemed one county, a court of oyer and terminer, with the jurisdiction conferred by the next section and no other, but nothing contained in this section affects its jurisdiction in actions or proceedings now pending therein.

(a) Oyer and terminer a continuous court.— The oyer and terminer is a permanent and continuous court ; its successive sessions are terms of the same and not of distinct tribunals. (Quimbo Appo v. People, 20 N. Y., 531; 18 How., 330; and though held by different presiding judges, People v. Naughton, 7 Abb. IN. S.), 421.)

(6) An indictment found in a court of sessions may be triable in the oyer and terminer of the same county. People ex rel. Sherwin v. Mead, 1 N. Y. Cr. R., 417; 92 N. Y. 415.

$ 22. (Amended 1882.) Its jurisdiction. The court of oyer and terminer has jurisdiction :

1. To inquire, by the intervention of a grand jury, of all crimes committed or triable in the county ; but in respect of such minor crimes as courts of special sessions or police courts have exclusive jurisdiction to hear and determine, in the first instance, the jurisdiction of the oyer and terminer attaches only after the certificate mentioned in section fifty-seven of this Code ;

2. To try and determine all such crimes, and to try all persons indicted for the same;

3. To deliver the jails of the county, or city and county, according to law, of all prisoners therein;

4. To try any indictment found in the court of sessions of the county or the court of general sessions of the city and county of New York, which has been sent by order of the court of sessions or general sessions to and received by the court of oyer and terminer, or which has been removed from any court into the court of oyer and terminer if, in the opinion of that court, it is proper to be tried therein ;

5. To exercise the same jurisdiction as a court of sessions in a cause or proceeding transferred according to sections forty and forty-one of this Code ;

6. By an order, entered in its minutes, to send any indictment found therein for a crime triable at the court of sessions of the county, or the court of general sessions of the city and county of New York, to such court;

7. To grant new trials in all cases tried therein ;

8. To let to bail any person committed, before and after indictment found, upon any criminal charge whatever;

9. To exercise the powers conferred upon it by other provisions of this Code and by special statutes.

(a) When case transferred.—The general sessions of New York have power to send to the oyer and terminer any untried indictment found in the court of sessions at any stage of the cause. (People v. Shepard, 19 How., 446; 11 Abb. 59.)

Where it appears that novel, intricate and important questions of law, are likely to arise on the trial, that great interest has been taken by the public, that great care must be taken to prevent injustice being done to the defendant, and that the case is of the highest importance, such facts, furnish good cause for its removal from court of general sessions to the oyer and terminer. People V. Squires, 4 N. Y. Cr. R., 444.

(6) Post Section 56 is not to be construed to take from a jury in the court of oyer and terminer, and of sessions, the power to find a verdict of petit larceny when the prisoner has been indicted for grand larceny and is on trial before them for that crime. People v. McTameny, 1 N. Y. Cr. R., 437.

(c) Must be on notice. But not except on motion and notice. (McFarland's case, 7 Abb. [N. S.), 348.)

Not necessary that the order be actually entered on the minutes. ( People v. Myers, 2 Hun. 6; 4 S. C., 29..)

(1) May be remitted.-An indictment found in the oyer and terminer and remitted to the sessions, may be again remitted back to the former court for trial. (People v. Gity, 10 Wend., 509.)

Where an indictment triable in the sessions has been removed into the oyer and terminer. that court may send it back to the sessions for trial. (People v. General Sessions of New York, 3 Barb., 144.)

(e) May be tried at any court.-An indictment sent to the oyer and terminer by the general sessions, may be tried at any time thereafter, though ordered to be sent to the next court of oyer and terminer. (Neal v. People, 42 N. Y., 270; 5) Barb., 551; 8 Abb. [ N. S.), 314.)

(f) Must be held at regular place.-The judge has no power to adjourn the oyer and terminer to another place within the district, than that appointed for holding the court. (Northrup v. People, 37 N. Y., 203; Flannagan v. People, 86 N. Y., 554.

(9) Jurisdiction of oyer and terminer.-The oyer and terminer has jurisdiction of a murder committed by a soldier in the actual service of the general government, within the body of the county ; that a court-martial has concurrent jurisdiction makes no difference. (People v. Gardiner, 6 Park., 143.)

(h) Judge cannot adjourn oyer and terminer by written order.-The supreme court judge assigned to hold the oyer and terminer cannot adjourn the court to a future day by a written order to the slieriff without being present in court ; but such adjournment may be ordered by any judge present. (People v. Clews, 4 Abb. Cas., 256.

§ 23. (Amended 1882.) By whom held.-A court of oyer and terminer is held by a justice of the supreme court, without an associate.

Since the adoption of the Constitution of 1846, the organization of courts of oyer and terminer is within the control of the legislature. (Smith v. People, 47 N. Y., 330.)

§ 24. Writ or process.-A writ or process issued out of the court of over and terminer must be tested in the name of a justice of the supreme court of the district, and may be directed by the court into any county of the state, as occasion requires.

$ 25. Clerk.-Except the clerk of the county of New York, the clerk of each county is, by virtue of his office, the clerk of the court of oyer and terminer held therein.

(a) Clerk not entitled to pay from the county.–The clerk of the oyer and terminer is not entitled to compensation from the county for services rendered to the public. (Mallory v. Supervisors of Cortland, 2 Cow., 531.)

But he is entitled to compensation for engrossing the minutes of these courts which he had before oflicially taken. (Doubleday v. Sup. of Broome, 2 Cow., 533, 18 Johns., 242.)

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