tion are of a judicial nature, and should therefore be public. (b) And all parties who are desirous of hearing what is going on have a right to be present if there be sufficient room for them, and they do not interrupt the proceedings, and there is no specific reason why they should be excluded. (c) (50)

*CHAPTER IV.

[* 634 ]

OF TRIALS FOR OFFENSES BEFORE COURTS OF SPECIAL

SESSIONS.

FORMERLY, Courts of special sessions of the peace were held by three justices, or, in some cases, by two justices and a judge of the county courts, for the trial of certain petty offenses specified in the statute, whenever a defendant charged with any such offense requested to be so tried, or failed to give bail for his appearance at the next criminal court having jurisdiction in the case. (1)

(b) Smythe, 245, 247. 1 Nun & Walsh, 77, 528. (c) See 10 Barn. & Cress., 237. Eagle's Mag.

Pock. Comp., 71. 1 Chit. Rep., 217. 2 Barn. & Ad., 663.

(50) The Code of Civil Procedure provides that the sittings of every court within this state shall be public, and that every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce on account of adultery, seduction, abortion, rape, assault with intent to commit rape, criminal conversation and bastardy, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses and officers of the court. (§ 5.) On examinations, the rule is this: The Code of Criminal Procedure provides that the witnesses produced on the part, either of the people, or of the defendant, can not be present at the examination of the defendant, and while a witness is under examination, the magistrate may exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other, until they are all examined. (§ 202.) The magistrate must also, upon the request of the defendant, exclude from the examination every person, except the clerk of the magistrate, the prosecutor and his counsel, the attorneygeneral, the district attorney of the county, and the officer having the defendant in custody. (§ 203.)

(1) The constitution provides that inferior local courts of civil and criminal jurisdiction may be established by the legislature. (Art. VI, § 19.)

Also that courts of special sessions shall have jurisdiction of such offenses of the grade of misdemeanors, as may be prescribed by law. (Id., § 26.)

By the Code of Civil Procedure, courts of special sessions in each town, and in certain cities and villages, are classed among the courts not of record. (§ 3.)

And it is declared that each of those courts shall continue to exercise the jurisdiction and powers now vested in it by law, according to the course and practice of the court, except as otherwise prescribed in that act. (Id., § 4.)

By the Code of Criminal Procedure, the courts of special sessions and police courts are deemed inferior courts not of record, within the section of the constitution which provides for the removal of justices of the peace and judges, or justices of inferior courts not of record, and their clerks, by such county, city or state courts as are designated by law; but for no other purpose. (§ 11.)

By the act of 1845, "to reduce the number of town officers," &c., it is enacted that courts of special sessions shall be held by a single magistrate, authorized to sit as a member of a court of special sessions, and that all offenses triable before such courts may be tried before such single magistrate, with or without a jury, at the election of the prisoner; and that all provisions of law applicable to the powers, duties and proceedings of such courts shall apply to such magistrate and the proceedings before him. (a) (2)

The organization, jurisdiction and practice of courts of special sessions depend almost wholly upon the statute; although there are many points of resemblance between them and the courts of Petty Sessions in England.

These courts, when held in the country, possess different powers, in some respects, from those conferred upon such courts when held in the city and county of New York. Besides this, there are some statutory provisions which are peculiarly applicable to courts of special sessions in cities other than New York. We will therefore consider 1. Courts of special sessions held in the several towns of the state. 2. Special sessions in the city and county of New York. 3. Special sessions in counties, cities and villages other than New York. 4. General provisions respecting courts of special sessions.

(a) Laws of 1845, ch. 180, § 15.

By whom held.]-Unless provision is otherwise made by law, a court of special sessions must be held by one justice of the peace of the town or city in which the same is held, and sections two hundred and ninety-three, two hundred and ninety-four, two hundred and ninetyfive, three hundred and ten, three hundred and thirty-two, three hundred and thirty-three, three hundred and thirty-four, three hundred and thirty-five, three hundred and thirty-six, three hundred and thirtyseven, three hundred and thirty-eight, three hundred and thirty-nine, three hundred and forty, three hundred and forty-one, three hundred and forty-two, and three hundred and fifty-nine to four hundred and fifty, both inclusive, shall apply as far as may be to proceedings in all courts of special sessions or police courts. (Code Cr. Pro., § 62, as amended in 1882.)

See also §§ 701, 702.

(2) Section 15 of the act of 1845 is superseded by above section of the Code of Criminal Procedure. That Code also provides as follows:

By section 63, a recorder of a city has power to hold a court of special sessions therein.

1. Courts of special sessions held in the several towns of the state. The Revised Statutes provide that courts of special sessions, except in the city and county of New York and the city of Albany, shall have power, subject to the provisions thereinafter contained, to hear and determine charges for crimes arising within their respective counties as follows:

*1. All cases of petit larceny, charged as a first offense: [*635] 2. Cases of assault and battery not charged to have been

committed riotously, or upon any public officer in the execution of his duties:

3. Charges for poisoning, killing, maiming, wounding, or cruelly beating animals:

4. Charges for racing animals within one mile of the place where any court is held :

5. Charges for committing any wilful trespass, or for severing any produce or article from the freehold, not amounting to grand larceny: 6. Charges for selling poisonous substances not labeled as required by law :

7. Charges for maliciously removing, altering, defacing, or cutting down monuments or marked trees :

8. Charges for maliciously breaking, destroying, or removing mile-stones, mile-boards, or guide-boards, or altering or defacing any inscription thereon:

9. Charges for wilfully or maliciously destroying any public or toll bridge, or any turnpike gate :

10. Charges against any person who shall be intoxicated while engaged in running any locomotive engine upon any railroad, or while acting as a conductor of a car or train of cars on any such railroad :

11. For setting up or drawing unauthorized lotteries, and for printing or publishing an account of any such illegal lottery, game or device; and for selling or procuring lottery tickets to be sold, and for offering for sale or distribution any property depending upon any lottery, and for selling any chances in any lottery, contrary to the provisions of article 4, chapter 20, part 1, title 8, of the 4th edition of the Revised Statutes :

12. All charges for running, trotting, or pacing horses, or other animals :

13. All offenses against the laws relating to excise, and the regu lation of taverns and groceries:

14. Charges for voting more than once at the same election, or procuring illegal votes:

15. Charges for making or vending any slung-shot, or any similar weapon:

16. Charges for unlawfully disclosing the fact of any indictment being found:

17. Charges for unlawfully bringing to or carrying letters from any state prison:

18. Charges for unlawfully, wilfully or maliciously destroying or injuring any mill-dam, or embankment necessary for the support of such dam:

19. Charges for unlawfully, intentionally or wilfully injuring any telegraph wire, post, pier, abutment, materials or property belonging to any line of telegraph:

20. Charges for unlawfully, knowingly and wilfully counterfeiting any representation, likeness, similitude or copy of the private stamp, wrapper or label of any mechanic or manufacturer:

21. Charges for malicious trespass on lands, trees or timber, or injuring any fruit or ornamental or shade tree:

22. Charges for maliciously or wilfully breaking or lowering any canal walls, or wantonly opening any lock gate, or destroying any bridge, or otherwise unlawfully injuring such canal or bridge :

23. Charges for unlawfully counterfeiting or defacing marks on packages:

24. Charges for unlawfully and negligently setting fire to wood or fallow land, or allowing the same to extend to lands of others, or unlawfully refusing to extinguish any fire :

25. Charges for unlawfully cutting out, altering or defacing any mark on any logs, timber, wood or plank, floating in any of the waters of this state or lying on the banks or shores of any such waters, or at any saw-mills, or on any island where the same may have drifted. (b) (3)

(b) 2 R. S., 711, § 1. This entire section thus amended by Laws of 1857, ch. 769; 3 R. S., 7th ed., 2543.

(3) JURISDICTION OF COURTS OF SPECIAL SESSIONS EXCEPT IN THE CITY AND COUNTY OF NEW YORK AND THE CITY OF ALBANY.

The act of 1857 (ch. 769) provides (§ 2) that courts of special sessions, except in the city and county of New York and city of Albany, shall in the first instance have

exclusive jurisdiction to hear and determine charges for crimes and offenses within their respective counties, in the cases in that section mentioned; and that their judgment, decision or determination may be appealed from in the manner thereinafter provided:

1. Charges against persons driving any carriages upon any turnpike road or highway in this state, for running or permitting their horses to run;

2. Charges for racing, running or testing the speed of any horse or other animal within one mile of the place where any court shall be sitting;

3. Charges for cruelty to animals contrary to law;

4. Charges for cheating at games;

[There are no subdivisions 5, 6, 7 in this section.]

8. Charges for winning or losing at any game or play, or by any bet, $25 within twenty-four hours;

9. Charges for selling liquor in court house contrary to law, and for selling liquor in jails contrary to law;

10. Charges for offenses against the provisions of the act of 1853 (ch. 573), and of the act of 1865 (ch. 225), amendatory thereof, for the more effectual prevention of wanton and malicious mischief;

[This subdivision added by L. of 1866, ch. 467.] (3 R. S., 7th ed., 2549.)

Charges for offenses against the provisions of ch. 375 of the Laws of 1867, entitled "An act for the more effectual prevention of cruelty to animals;" also for offenses against the provisions of ch. 682 of the Laws of 1866, entitled "An act better to prevent cruelty to animals." [This paragraph added by L. of 1872, ch. 530, 3 R. S., 7th ed., 2549.]

All of the act of 1857 (ch. 769), with the exception of the first two sections, are repealed by the Laws of 1859 (ch. 339, § 1).

The act of 1879 (ch. 390), "to extend the jurisdiction of courts of special sessions, except in the city of Albany and in the city and county of New York," declares that courts of special sessions, except in those cities shall, in addition to the powers now possessed by them, have also exclusive jurisdiction in the first instance to hear and determine the following cases:

1. Charges for petit larceny not charged as a second offense;

2. Charges for assault and battery not alleged to have been committed riotously; 3. Charges for running, trotting or pacing horses or any other animasl;

4. Charges for unlawfully, intentionally or wrongfully injuring any telegraph wire, post, pier, abutment, materials or property belonging to any line of telegraph; 5. Charges for unlawfully and negligently setting fire to wood or fallow land, or allowing the same to extend to lands of others, or unlawfully refusing to extinguish any fire;

6. Charges for cruelty to animals under the several acts passed, or which may hereafter be passed, relating to or affecting animals. (3 R. S., 7th ed., 2549.)

It has been held that the above act of 1879 (ch. 390), conferring upon courts of special sessions exclusive jurisdiction, in the first instance, to hear and determine certain crimes and offenses therein mentioned, is constitutional and valid. (Devine v. People, 20 Hun, 98; People ex rel. Comaford v. Dutcher, id., 241.)

The word "charges," in that act, which gives to courts of special sessions exclusive jurisdiction, in the first instance, to hear and determine among other things "charges for assault and battery, not alleged to have been committed riotously," implies an original complaint, made in the first instance, preliminary to a formal trial for a crime. It does not include indictments. (Ryan v. People, 79 N. Y., 592.)

The provision of the state constitution (art. 6. § 26) declaring that "courts of special sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law," is not limited to offenses of the grade specified, created by statute after the adoption of that provision. It includes as well all such offenses existing by statute at that time, including petit larceny. (People ex rel. Comaford v. Dutcher, 83 N. Y., 240.) That provision also was intended to confer authority upon those courts as they were then or might thereafter be constituted by statute, and without regard to the question whether or not they were authorized to summon and impanel a common law jury. (Id.) Hence the provision of the act of 1879 (ch. 390), giving the courts of special sessions, except in the cities of New York and Albany, exclusive jurisdiction to hear and determine in the first instance, "charges for petit larceny not charged as a second offense," is constitutional and valid. (Id.)