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nature of the case may require, but such fine shall in no case exceed fifty dollars, nor such imprisonment six months.1

§ 42. OF THE ACQUITTAL OF THE DEFENDANT AND CONCERNING COSTS.

Whenever a defendant, tried under the provisions of the statute above referred to, either by the court or by a jury, shall be acquitted, he shall be immediately discharged. And if the court before whom the trial is had shall certify in its minutes that the complaint was willful and malicious, and without probable cause, it shall be the duty of the complainant to pay all the costs that shall have accrued to the court and constable in the proceedings had upon such complaint, or to give a satisfactory bond to the people of this State, with one or more sureties, to pay the same in thirty days after the said trial. If the complainant shall refuse or neglect to pay such costs, or to give such security, the court may forthwith enter judgment against him for the amount of such costs, and commit him to the common jail of the county in which the trial was had, there to remain, in like manner and for the same time as if committed on a justice's execution in a civil cause, until he shall satisfy such judgment, with the costs of the commitment, or until he shall be discharged by due course of law.2

The last mentioned provisions of the Revised Statute were amended by the Legislature of 1845, by the following enactment: Whenever a magistrate or a jury, before whom a criminal cause shall be tried under the act reorganizing courts of sessions, shall be satisfied from the evidence and proceedings had before them, that the person or persons charged and tried were complained of and proceeded against without probable cause, and with malicious intent to injure or harass, they may render a verdict for costs against the complainant; whereupon the magistrate shall enter judgment for the amount of such costs upon which an execution may issue against the property or person of such complainant, in the same manner as upon a judgment rendered for a tort by a justice of the peace.3

12 R. S., 714, § 19.

2 R. S., 714, §§ 20, 21.

• Laws 1845, ch. 180, § 16, p. 186; 2 R. S., 714, § 22.

§ 43. JUDGEMENTS, HOW EXECUTED.

The judgment of every court of special sessions shall be executed by the sheriff, constables and marshals of the county, or city and county in which the conviction shall be had, by virtue of a warrant under the hands of the magistrate who held the court, to be directed to such officers or to such of them as may be necessary, and specifying the particulars of such judgment.1

A court of special sessions, before whom a conviction is had, may proceed and cause their judgment to be executed, notwithstanding notice of an intention to remove the conviction and the entrance into recognizance by the defendant, if a certiorari is not sued out.2

A warrant of commitment issued, by a justice of the peace upon a conviction for petit larceny, is void unless it be directed to the officer or class of officers by whom it is to be executed, and will afford no protection to a constable who executes it. The Legislature, by the section of the statute relative to warrants of commitment issued by courts of special sessions, did not intend to prescribe a form for such warrants, or to vary the common law rule respecting them; hence a warrant which would be good at common law will be valid under the statute.3 The commitment need not state facts, which the statute does not require that the record of conviction should state. Thus, under the provisions of the statute, prescribing that, in any other county than New York, the record "shall briefly state the offence charged, and the conviction and judgment thereon, and if any fine has been collected the amount thereof, and to whom paid," the necessity of averring the jurisdictional facts in the writ is dispensed with, by the provision that the record need not set forth those facts. Hence a commitment, issued upon a conviction before a court of special sessions, need not contain a statement that the defendant, when brought before a magistrate, requested to be tried before a court of special sessions; nor that, having been required by the magistrate to give bail, the defendant omitted for twenty-four hours to do so; nor whether the defendant demanded a jury.5

2 R. S., 716, § 60.

' Peo. v. Gates, 5 Wend., 111.

• Russell v. Hubbard, 6 Barb., 654. Vide ante.

2 R. S., 711, § 38.

Peo. v. Moore, 3 Park., 465.

§ 44. PAYMENT AND ACCOUNTING FOR FINES.

All fines imposed by any such court, if paid before commitment, shall be received by the magistrate calling the court before which the defendant was convicted, and shall be applied to the payment of the charges of apprehending and prosecuting the offender; and after deducting the sums allowed therefor, the remainder, if any, shall be paid by such magistrate within thirty days after the receipt thereof, to the county treasurer, for the use of the county. In the city and county of New York an account shall be rendered every thirty days, by the court to the comptroller of the city, of the expenses attending such court, and the fines which shall be imposed or collected. If the defendant be committed, payment of any fine imposed on him shall be made to the sheriff of the county, who shall, within thirty days after the receipt of any such fine, pay over the amount received by him to the county treasurer, to be applied as above provided. If any person who shall have received any such fine, or any part thereof, pursuant to the sections of the statute above cited, shall fail to pay to the county treasurer, the said moneys, or such part thereof as shall by law be payable to him within the time above prescribed, it shall be the duty of such county treasurer immediately to commence suit therefor, and to prosecute the same diligently to effect.1

§ 45. RECORDS OF CONVICTION.

Whenever any conviction shall be had before any court of special sessions, held in any other county than New York, the magistrate by whom such court shall have been held shall make a certificate of such conviction, under his hand, in which it shall be sufficient briefly to state the offence charged and the conviction and judgment thereon, and if any fine has been collected, the amount thereof and to whom paid.2

§ 46. WHEN FILED.

Within thirty days after such conviction, the said magistrate shall cause such certificate to be filed in the office of the clerk of the county in which the conviction shall have been had. In the city of New York a transcript of every conviction had pursuant

1 2 R. S., 716, §§ 61, 62, 63. Vide Laws 1866, ch. 692, § 4, p. 290. 22 R. S., 717, § 67.

to the above-mentioned provisions of the statute, before any court of special sessions from which an appeal shall not have been made, under the hand of the magistrate of such court, containing the matter above required, shall be filed in the office of the clerk of the said city and county, within five days after such conviction.1

The sheriffs, county clerks, and clerks of the court of special sessions in the city of New York, are required to transmit statements of such convictions to the office of the Secretary of State.2

§ 47. CERTIFICATE, HOW FAR EVIDENCE.

Every certificate of conviction made and filed under the foregoing provisions, or a duly certified copy thereof, shall be evidence in all courts and places of the facts stated therein.3

A conviction before a court of special sessions must be proved by the record of conviction, or a duly certified copy thereof if a record has been filed; and secondary evidence of a conviction cannot be received, unless it is shown that no record of conviction has been filed.4

§ 48. SPECIAL PROVISIONS IN RELATION TO COURTS OF SPECIAL

SESSIONS IN THE CITY AND COUNTY OF NEW YORK.

The power of courts of special sessions in the city and county of New York, to hear and determine complaints for criminal offences, has already been spoken of.5 Under the provisions of the Revised Statutes, prior to the passage of the act of 1855, a person accused of petit larceny or assault and battery not committed riotously, might, after he had given a recognizance to appear at the general sessions, demand to be tried by the special sessions; for it was declared by the statute that if a person, accused of either of these offences, should be required to enter into a recognizance to appear before the proper court to answer such charge, that he might at any time demand to be tried by the special sessions, upon which the court was to proceed and

1

1 2 R. S., 717, §§ 39, 40; as amended, Laws of 1866, ch. 692, § 5; p. 290.

2 Vol. 2, Laws of 1867, ch. 604, p. 1630.

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hear and determine the accusation. Before the act of 1855 it is presumed it was the practice, in every case where the accused was admitted to bail and wished to be tried at the special sessions, to take a recognizance for his appearance at the general sessions, and if he failed to appear at the special sessions to have him indicted, and if he neglected to appear at the general sessions to answer the indictment to forfeit his recognizance. The special sessions obtained jurisdiction if the accused did not require to be tried at the general sessions; or did not, within twenty-four hours after being committed on the charge, enter into a recognizance for his appearance at the next court of general sessions; or if, having entered into such recognizance, he saw fit thereafter to demand to be tried by the special sessions. The object of these provisions was to enable the party, accused of these petty offences, to have a more speedy trial if he desired it. But the act of 18551 made a very material change; it greatly enlarged the powers of courts of special sessions, by declaring that it should have exclusive jurisdiction of all misdemeanors; unless it should order the complaint to be heard at the general sessions, or unless the accused, when arrested and brought before the committing magistrates, should elect to have his case heard and determined by the general sessions, and it was made the duty of the magistrate to inform him of this provision; and where a party is brought before the special sessions of the city of New York, and enters into a recognizance for his appearance at the general sessions, it must be regarded as an election by him and as a recognition by the magistrate of his election to be tried by the general sessions, and the special sessions thereafter has no jurisdiction of the case, and this is so whether the accused was informed or not by the magistrate or the clerk of special sessions that it was his privilege to elect to be tried at the general sessions, as required by the statute."

In all cases of misdemeanors in the city and county of New York, where the accused, upon being arrested and brought before the committing magistrate, shall elect to have his case heard and determined by the court of special sessions, agreeably to the provisions of the statute above referred to, the affidavit of complaint shall be forthwith filed with the clerk of said court to the end,

'Laws 1855, p. 613, ch. 337.

2 Peo. v. Doyle, 19 How., 11.

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