§ 26. In addition to the jurisdiction conferred by the last section, jurisdiction was transferred to the courts of oyer and terminer in their respective counties, on the first Monday of July, 1847, of all indictments and proceedings then pending in the late courts of oyer and terminer; and also of all indictments and proceedings then pending in the late courts of general sessions of the peace, except in the city of New-York, and except in cases of which the courts of sessions may take cognizance, as provided in section 32. Conformable to the Constitution, art. 14, sec. 5. § 27. Jurisdiction was likewise transferred to this court in the county of Monroe, on the thirtieth day of April, 1849, of all criminal actions and proceedings then pending in the late mayor's court of the city of Rochester, and of all proceedings incident to judgments rendered in that court in those actions and proceedings, on or before that day. Taken from the act to abolish the mayor's court of the city of Rochester; Laws of 1849, p. 435, sec. 6. § 28. This court, (except in the city and county of New-York,) must be held by a judge of the supreme court as the presiding judge, together with the county judge, and two justices of the sessions, designated as prescribed by other statutes. If the justices of the sessions, or either of them, be absent at a term of the court of oyer and terminer, or the office of those justices or either of them be vacant, the county judge may supply the vacancy or deficiency, for the term, by designating the requisite number to form the court, from the justices of the peace of the county. of The first part of this section is taken from the section of the constitution, which provides that any one of the judges of the supreme court may preside in courts of oyer and termimer in any county. Co st. art. 6, sec. 6. That part of it which relates to the county judge and two justices of the sessions, is substantially the same as the provision of the judiciary act. Laws of 1847, p. 331, sec. 40. 29. In the city and county of New-York, the court oyer and terminer must be held by a judge of the the supreme court as the presiding judge, together with two of the aldermen of the city of New-York, designated as the common council may by ordinance prescribe. By the existing statutes, as they have been construed by the court of errors, the court of oyer and terminer in the city and county of New-York may be held by one or more of the judges of the supreme court, or by either of the three judges of the court of common pleas of that city and county, together with the mayor, recorder and aldermen of that city, or with any two of them. 2 R. S., 3d ed., 270, sec. 34, subd. 1; The People v. White, 24 Wend. 543-545. Upon this provision, a very embarrassing question arose in the case just cited. One of the judges of the court of common pleas had sat conjointly with a circuit judge and with two of the aldermen, and upon this state of facts, the chancellor expressed his opinion that the court was illegally constituted, and voted for the reversal of a judgment of conviction in a capital case. "The effect of this last provision," says, he, was to authorise one or more of the justices of the supreme court, or one or more of the circuit judges, to sit in the court of oyer and terminer, with the mayor, recorder and aldermen, or any two of them; but excluding from the court when thus organized, the first judge [CRIM. CODE.] 66 2 of the court of common pleas, who is only authorised to preside in or be present in the court of oyer and terminer as a judge thereof, when a justice of the supreme court or a circuit judge does not constitute one of the members of the court. This is the only intelligible construction which I have been able to put upon the language of the statute; and as the second associate judge of the common pleas has no other powers in relation to the court of oyer and terminer, than such as were vested in the first judge, it follows of course, that the court which commenced the trial in this case was not legally organized; as it appears by the record that it was held before two persons who were not authorised to hold it conjointly. This is unquestionally an objection more of form than of substance, as it is not probable that the rights of the prisoner were really prejudiced thereby; though the decision of the court upon any question of law that arose, might have been been left undecided, if the court were equally divided in opinion. In a case involving the life of a fellow being, I do not feel myself authorised to disregard the legal objection to the organization of the court before which he was tried. I must, therefore, vote for a reversal of the judgment, so that the prisoner may have another trial for his life before a tribunal properly constituted for that purpose." No distinct resolution having been adopted by the court upon this question, it is of course uncertain whether or not the views taken by the chancellor were sustained by the majority of the court. To obviate a similar embarrassment, it seems proper to declare, by what officers, in conjunction with a judge of the supreme court, the court of oyer and terminer may be held in the city and county of New-York. In practice, it was invariably held, under the old constitution, by a circuit judge with two of the aldermen; and under the present constitution, it is uniformly held by a judge of the supreme court with two of those officers. The judges of the common pleas are also omitted as presding judges of the court, in conformity with what appears to be the meaning of the constitutional provision that any one of the judges of the supreme court may preside in the courts of oyer and terminer in any county. Const. art. 6, sec. 6. § 30. The court of oyer and terminer must be held at the same place and commenced on the same day with the circuit in the county; and must be continued as long as the public interests require, whether the circuit remain in session or not. TITLE IV. OF THE COURTS OF SESSIONS. CHAPTER I. The courts of sessions, in general. II. The courts of sessions, other than in city and county of New-York. CHAPTER I. THE COURTS OF SESSIONS, IN GENERAL. SECTION 31. Court of sessions in each county. §31. There is in each of the counties of this state, a court, denominated a court of sessions, with the jurisdiction conferred by the next two chapters, and no other; but nothing contained in this section affects its jurisdiction in actions or proceedings now pending therein. CHAPTER II. THE COURTS OF SESSIONS, OTHER THAN IN THE CITY AND COUNTY OF NEW-YORK. SECTION 32, 33. Their jurisdiction. 34. Indictments for offences punishable with death, to be sent to oyer and terminer. 35. Other indictments may be sent to oyer and terminer. 36. By whom held. 37. When and where held, and their duration. § 32. The courts of sessions embraced in this chapter have jurisdiction, 1. To inquire, by the intervention of a grand jury, of all public offences committed or triable in the county: 2. To try and determine indictments found therein, or sent thereto by the court of oyer and terminer of the county, for public offences not punishable with death: 3. To remove justices of the peace, police justices, and justices of justices' courts, in their respective counties, and their clerks, after due notice and an opportunity of being heard in their defence, for causes to be stated in the order of removal: 4. To hear and determine appeals from orders of justices of the peace, under the provisions of this code, respecting the support of bastards: 5. To examine into the circumstances of persons committed to prison as parents of bastards, and to discharge them in the cases provided by this code: 6. To hear and determine complaints under the provisions of this code, respecting masters, apprentices, and servants: 7. To review the convictions of disorderly persons actually imprisoned, and to execute the powers conferred and duties imposed by this code, in relation to those persons: 8. To continue or discharge the recognizances, undertakings and bonds of persons bound to keep the |