§ 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. Adjournments, 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 traveling 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. Ia $$ 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. § 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. 3 R. S., 459, §§ 20, 21. (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., 350; and though held by different presiding judges, People v. Naughton, 7 Abb. [N. S.], 421.) § 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. 3 R. S., 229, § 23-26. (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. Shepherd, 19 How., 446; 11 Abb., 59.) (b) Must be on notice. - But not except on motion and notice. (Mc Far land'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., 292.) - (e) 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. Gay, 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.) (d) 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; 55 Barb., 551; 8 Abb. [N. S.], 314.) (e) 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; reversing 50 Barb., 147.) (ƒ) Judge cannot discharge prison er. - A judge in the supreme court in the oyer and terminer, has no power to discharge a prisoner in arrest on a civil process. (People v. Brennan, 61 Barb., 510.) (g) Nor sign exceptions after final adjournment. The judges of the oyer and terminer have no power to settle and sign a bill of exceptions after a final adjournment of the court. (Binge v. People, 5 Park., 9.) (A) 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 coreurrent jurisdiction makes no difference. (People v. Gardiner, 6 Park. A motion to amend the record after a return has been made to a writ of error, should not be made in the supreme court, but in the court below. (Gra ham v. People, 63 Barb., 468.) (1) Oyer could not grant new trial.- A court of oyer and terminer had no power, by the common law, to grant new trials upon the merits, after conviction, in a capital case, nor, it seems, in any case of felony. (6 Term R., 625; Chitt. Cr. L., 532; Appo v. People, 20 N. Y., 531; People v. Townsend, 1 Johns. Cas., 104; Col. and C. Cas., 73; Noah's case, 3 C. H. Rec., 13; People v. Comstock, 8 Wend., 549; People v. Dutchess [O. and T.], 2 Barb., 282; see, also, Willis v. People, 32 N. Y., 715; 5 Park., 621.) (j) Judge cannot adjourn oyer 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 sheriff 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. 3 R. S., 231, § 39; New York Const., art. VI, §7; §§ 232–239 Code Civil Pro cedure. (a) Court must convene on day appointed. If a quorum of judges do not appear on the day appointed, a court of oyer and terminer cannot be holden at a subsequent day. (People v. Bradwell, 2 Cow., 445.) (b) Court of appeals judge may preside.-A justice of the supreme court may preside in the oyer and terminer during the period of his term of service in the court of appeals. (McCarron v. People, 13 N. Y., 2 Park., 183.) 74; (c) Judge of common pleas may.-Under the act of 1839, an associate judge of the common pleas has authority, in connection with two aldermen, to hold a court of oyer and terminer. (People v. White, 22 Wend., 167; 24 id., 520; People v. Colt, 3 Hill, 432.) (d) Must be a full bench.—If one of the justices holding an oyer and terminer leave the court pending a trial, and after being absent for a day return and take part in the subsequent deliberations of the court, without having read the evidence given in his absence, it is a mistrial, and such error cannot be waived by the prisoner in a capital case. (Shaw v. People, 3 Hun, 272; 5 S. C., 439; 63 N. Y., 36; Blend v. People, 41 N. Y., 604.) 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.) A trial justice cannot testify. (Dohring v. People, 2 S. C., 458; 59 N. Y., 374.) § 24. Writ or process. A writ or process issued out of the court of oyer 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. R. S., 231, § 39; §§ 232-239 Code Civil Procedure. 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. 3 R. S., 231, $$ 42, 43. (u) 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 officially taken. (Doubleday v. Sup. of Broome, 2 Cow., 533 18 Johns., 242.) TITLE IV. OF THE CITY COURTS. CHAPTER I. The city court of Brooklyn. III. The other city courts. IV. General provisions relating to city courts. CHAPTER I. THE CITY COURT OF BROOKLYN. SECTION 26. Jurisdiction. 27. By whom held. § 26. Jurisdiction. The city court of Brooklyn has criminal jurisdiction: 1. To the same extent and in the same manner, and with the same power as a court of oyer and terminer in the county of Kings in the indictment and trial of all offenses committed in the city of Brooklyn, whenever a bill of indictment for any such offense has been transmitted to the court by the court of sessions or court of oyer and terminer of the county of Kings; 2. To remand any such indictment to the court of sessions or court of oyer and terminer of the county of Kings; 3. To prosecute a forfeited recognizance taken by the court of sessions or court of oyer and terminer of Kings county, and binding the party or parties and witnesses to such indictment to appear in the city of Brooklyn. Laws 1849, ch. 125, § 1; Laws 1870, ch. 470; and see N. Y. Const., art VI, § 12; 3 R. S., 283, § 15; Code Civ. Proc., §§ 307–313.) |