People ex rel. Doyle v. Johnston , 19 How. Pr. 11 ( 1860 )

Daly, F. J.

—Under the Revised Statutes (2 Rev. Stat., 889, 4th ed., § 24), a party accused of petit larceny, or assault and battery, might, after he had given a recognizance to appear at the General Sessions, demand to be tried at the Special Sessions; for it was declared by section 24 above referred to, that if a person accused of either of these offences should be recpiired to enter into a recognizance, to appear before the proper court to. answer the charge, that he might at any tíme demand to be tried by the Special Sessions, upon which that court was required to proceed to hear and determine the accusation. Before the act of 1855, therefore, I presume 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 1855 made a very material change. (Laws of 1855, 613.) It greatly enlarged the powers of the 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. If Doyle had been informed of his rights by the magistrate, or by Johnston, the clerk, and he made no election, it was the duty of the magistrate to commit him for trial at the Special Sessions, or take a recognizance for an appearance before that court. There seems to have been a doubt of the right to take a recognizance for an appearance a,t the Special Sessions, to remove which the act of 1859 was passed (Laws of 1859,1129), which declares that if the accused elects to be tried at, the Special Sessions, and is admitted to bail, a recognizance shall be taken for his appearance at that court. But there was no ground for for such a doubt, for since the time of the passage of the act of Philip and Mary (6 Evans Stat., 252), in cases of petty larcenies and small felonies, the recognizance was certified to the Quarter Sessions (Dalton's Justice, 540 ; Hugh Petersdorf on Bail, 511), a tribunal for the trial of minor offences, analogous to our Special Sessions. The practice of taking a recognizance for the prisoner’s appearance at the General Sessions was, after the act of 1835, no longer necessary or proper, for the prisoner could not, as before, elect at any Ume to be tried by the Special Sessions. He was bound, after the passage of that act, to elect to be tried before the General Sessions, when he was arrested and brought before the committing magistrate, and if he did not, at that time so elect, the Special Sessions had exclusive jurisdiction. There was some reason, before the passage of the act of 1855, for taking the recognizance in every case for an appearance at the General Sessions, but none thereafter. It matters not, therefore, whether Johnston, the clerk, informed Doyle of the provisions of the act of 1855 or not, a point that is contested in the affidavit. For when he entered into a recognizance before Justice Kelly 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 at the Gehdral.peS-V sions. This being the case, the Special Sessions had no jurisdiction. He was not amenable to the process of that court, and must be discharged.