be composed of a Justice of the Supreme Court, who shall preside, and the County Judge and the Justices of the Peace, designated as members of the Courts of Sessions. The presiding justice, and any two of the other officers above mentioned, have power to hold said courts. The courts are to be held at the same times and places that Circuit Courts of the same county are appointed to be held.1

A Justice of the Supreme Court may preside at a Court of Oyer and Terminer during the year in which he is a Judge of the Court of Appeals.2

In the county of New York the Courts of Oyer and Terminer are composed of a Justice of the Supreme Court, who shall preside, and any two of the following officers: the Judges of the Court of Common Pleas of said city and county; the Mayor, Recorder and Aldermen of said city; and such courts are also to be held at the same time and place that Circuit Courts for that county shall be held.3

The Governor, by and with the consent of the Senate, may issue commissions of oyer and terminer and jail delivery, as often as occasion shall require, but some one of the Justices of the Supreme Court shall always be named in the commission as one of the commissioners, and no proceeding shall be had upon any such commission without the presence of such justice or judge. Every such commission shall specify the time and place at which the court is to be held in pursuance thereof, and is to be recorded in like manner as the commissions of civil officers, in the office of the Secretary of State. The Secretary of State is, without delay, to transmit to the district attorney of the county for which such commission shall have been issued, a copy thereof; and whenever it shall become necessary, by reason of the number of prisoners confined in the jail of any county, or by reason of the importance of the offences charged upon such prisoners, to appoint a special Court of Oyer and Terminer and Jail Delivery, a Justice of the Supreme Court, elected for the district within which such county shall be situated, has power by warrant, under his hand and seal, to appoint a Court of Oyer and Terminer and Jail Delivery for such county, to be held therein at some place

1 2 R. S., 204, § 9; Laws 1847, ch. 280, § 38.

* 2 Park., 183.

' Id., § 10; Id., § 39. Vide 1 Park., 611.

provided by law, at such time as he may designate in such warrant, not less than thirty days from the date thereof. The justice issuing such warrant, is to forthwith transmit the same to the district attorney of the county.1

The Judiciary Act2 contains a similar provision in relation to Courts of Oyer and Terminer as to Courts of Sessions. That act provides that Courts of Oyer and Terminer shall possess the same powers, and exercise the same jurisdiction, as were possessed and exercised by the then Courts of Oyer and Terminer of the State, so far as the same are consistent with the constitution and the provisions of said act, and all laws relating to such existing Courts of Oyer and Terminer, and the jurisdiction, powers and duties of said courts, the proceedings therein, and the officers thereof, and their powers and duties, were made applicable to the Courts of Oyer and Terminer, as organized by said act, their powers and duties, the proceedings therein, and the officers thereof, and their powers and duties, so far as the same can be so applied, and are consistent with the constitution and the provisions of said act.

Courts of Oyer and Terminer have power:

1. To inquire by the oath of good and lawful men of the same county, of all crimes and misdemeanors committed, or triable in such county.

2. To hear and determine all such crimes and misdemeanors. 3. To deliver the jails of the said county, or city and county, according to law, of all prisoners therein.3

Every Court of Oyer and Terminer, and Jail Delivery, has also power to try all indictments found in the Court of Sessions of the same county, or city and county, which shall have been sent by order of such Court of Sessions to, and received by the said Court of Oyer and Terminer, or which shall have been removed into the said Court of Oyer and Terminer, and which, in the opinion of the said Court of Oyer and Terminer, may be proper to be tried therein.4

The several Courts of Oyer and Terminer and Jail Delivery, may also, by order entered in their minutes, send all indictments

found at any such court for offences triable at the Court of Sessions of the same county, to be proceeded on and tried therein.1 The Court of Oyer and Terminer has a discretion to refuse to try such indictments as in the opinion of the court may not be proper to be tried therein; and where an indictment has been found in the Sessions for an offence triable in that court, and the cause is subsequently removed into the Oyer and Terminer by an order of a Circuit Judge, the Oyer and Terminer has power to order the indictment to be sent back to the Sessions for trial, and without notice to the accused.2

Courts of Oyer and Terminer have also the same power to change the place of trial upon any indictment pending therein, as the Supreme Court has to change the place of trial in civil actions; and when the place of trial shall be so changed, the indictment shall be deemed to be pending in the Court of Oyer and Terminer of the county to which the place of trial has been so changed; and such court may proceed to try the same, and render judgment thereon.3

There has been considerable conflict in the decisions in this State as to the power of Courts of Oyer and Terminer to grant new trials upon the merits, but the Court of Appeals have held that the Oyer and Terminer has no power to order a new trial upon the merits after a conviction for felony.4

Whenever at the time appointed for the commencement of any term of the Court of Oyer and Terminer of this State, or at any time during such term, if either of the justices of the peace designated as members of the Court of Sessions of the county in which such term of court shall be held, shall not attend such court as a member thereof, the Justice of the Supreme Court, holding such Court in the absence of the County Judge of said county, may, at such term, designate some other justice of the peace of the county to supply the vacancy occasioned by such non attendance of any such justice, until the justice not attending, as aforesaid, shall attend such Court as a member thereof; but such designation by the Justice of the Supreme Court shall not authorize the justice designated by him to supply any such

12 R. S., 205, § 16.

Peo. v. Sessions, &c., 3 Barb., 144. See Laws 1855, ch. 337.

vancancy at any other term than that at which such designation shall be made.1

Any Justice of the Supreme Court may open and hold a Court of Oyer and Terminer at the time when the same shall have been appointed to be held, or to which it may have been adjourned, or during the sitting of any Circuit Court, for the purpose of taking recognizances from parties and witnesses."

Whenever the office of District-Attorney of any county shall be vacant at the term of any Court of Oyer and Terminer, or Court of Sessions of any county, or the District-Attorney shall, for any cause be unable to attend the term of any such court, the members of the court, except the Justice of the Supreme Court, may designate some suitable person to act as District-Attorney at such term of the court; and the person so designated shall have, and exercise the same powers, and discharge the same duties as District-Attorneys, elected in the manner provided by law, and shall be entitled to such compensation, to be paid out of the treasury of the county, as the Board of Supervisors shall allow.3

The clerks of the several counties (the city and county of New York excepted), are, by virtue of their offices, Clerks of the Courts of Oyer and Terminer and jail delivery, within their respective counties; and the Clerk of the Court of General Sessions, in and for the city of and county of New York, by virtue of his office, is the Clerk of the Court of Oyer and Terminer, in and for said city and county.1

SECTION XXIII.

THE SUPREME COURT.

This Court has jurisdiction to review the determination of a Court of Sessions or of Oyer and Terminer, or of the Court of General Sessions after conviction, when the record is brought into that Court by writ of error or certiorari for review, and in cases where an indictment is removed into that court before trial, and it is carried down and tried at the Circuit Court.5

12 R. S., 206, § 39, Laws 1854, ch. 73, § 1. Vide Laws 1847, ch. 280, § 40; amended ch. 270, § 35.

SECTION XXIV.

THE COURT OF APPEALS.

This Court has jurisdiction to review the determination of the Supreme Court, made at General Term, upon the review of criminal convictions when brought into that Court. The court of last resort in this State is the exclusive judge of its own jurisdiction, and its decision on that point cannot be questioned by the court below, when directed to carry into effect a judgment of reversal; but where the jurisdictional question has not been decided by the court of last resort, it is open to examination in the court below.1