People v. Burnham ( 1897 )

Landon, J.:

We think the special county judge had power to allow the appeal. Chapter 306, Laws of 1849, page 437, as amended by chapter 108, Laws of 1851, page 192, provides that special county judges in the county of St. Lawrence and the other counties specified in the act, “ shall possess all the powers and perform the duties which are possessed and can be performed by a county judge out of court.” (§ 2.)

This act was framed in pursuance of section 16, article 6 of the Constitution; it has not been expressly repealed, and we do not think that the subsequent legislation respecting appeals from judgments of Special Sessions should be construed as depriving tlie special county judge of this power. Section 749 of the Code of Criminal Procedure provides that a judgment of conviction rendered by a Court of Special Sessions “may be reviewed by the County Court of the county upon an appeal as prescribed by this title and not otherwise.” Section 751 provides that the defendant must present an affidavit showing, among other things, the alleged errors “ to the county judge,” and section 752 provides that, “ if in the opinion of the judge it is proper that the question arising on the appeal should be decided by the County Court, he must indorse on the affidavit an allowance of the appeal to that court.” This is a power to be exercised out of court, and is thus vested in the special county judge.

The “ not otherwise ” of section 749 was probably intended as emphasizing the repeal of the method of review by certiorari, which the method by appeal superseded.

The article “ the ” in the expression “ the county judge ” in section 751 does not strike us as emphatic. Cases in which the scope of the powers of the special county judge have been considered show no tendency to give a narrow construction to the statute which confers them. (People v. Main, 20 N. Y. 434 ; Seymour v. Mercer, 13 How. Pr. 564; Thrasher v. Bentley, 59 N. Y. 649.)

The order of the County Court is reversed and the appeal of the defendant reinstated.

All concurred.

Order of County Court reversed and appeal of defendant reinstated.