People v. Dohring, 59 N. Y., 374. questions relating to the admissibility of evidence or any other question. The Court of Appeals, while overruling this point, affirmed the judgment on other grounds. FOLGER, J. [on this point, said]: It has been held that the two justices of the sessions are indispensable to constitute a legally organized Court of Sessions, and that neither can be dispensed with any more than the county judge. (Blend v. The People, 41 N. Y., 604). The question there arose, however, upon objection and exception taken by the plaintiff in error, and was passed upon as an error, and not as a matter affecting the jurisdiction of the court. The court was held disorganized, by one of the justices of sessions who had taken part in the proceedings on the trial for a time, after that, absenting himself from the place where the court was held, and not reappearing. It is said there, that it was not the case of a member of the court leaving the bench for a few moments, intending to return, but a total abandonment of the trial, in consequence of which one-third of the court was changed. It there appears that another justice of the peace was called by the circuit judge to the vacant place. In the case in hand, the justice of the sessions who was sworn as a witness did not leave the court room while the trial was progressing; he did not abandon the trial; he left the bench for a space, intending to soon return to it, and did soon return. The mere absence from the bench, while he was in the witness box, did not bring this case within that above cited. If the Niagara County Sessions lost jurisdiction of this case, it was not because any of the members of the court were not present at the trial, ready to perform the duty assigned to them by the laws. The court had, in the first instance, obtained jurisdiction and was in the exercise of it. Did it lose it because one of its members was called from his place on the bench to stand for a time in the witness box and give testimony? We are inclined to think that it was error to permit him to take his place and be sworn and testify, as a witness. It was erroneous, not because in this instance any harm came either to the people or to the defendant, for neither made objection, and both consented; but because such ness. People v. Dohring, 59 N. Y., 374. practice, if sanctioned, may lead to unseemly and embarrassing results, to the hindering of justice, and to the scandal of the courts. Thus, it has been sanctioned that two of the members of a court constituted by especial commission, might be sworn and testify as witnesses against one on trial before it. But in that case it would seem that without them there was a court of legal fullness and capacity to conduct the business; for they did not, after being improved as witnesses, return to their seats on the bench. (Rex v. Hacker, Kel., fol. 12, cited in Hawk, P. C., Chap. 46, 17.) It is asserted that in Reg. v. Lee, and Reg. v. Blunt (1 St. Tr., 1403, 1415), in the year 1600, Popham, Ch. J., was both judge and witness; but one would not wish to build on the precedents alone of those trials in those times. When a nobleman is tried by the house of lords, any of the peers is a competent wit(Lord Stafford's Case, 7 How. St. Trials, 1384, 1458, 1552; Earl of Macclesfield's Case, 16 id., 1252, 1391). In those cases, certain lords were not only witnesses, but afterward gave their votes upon the question, guilty or not guilty. But the same reason was there, that without them, peers enough were present to form a court; an additional reason is given also, that they acted in the capacity of jurors as well as of judges; and it is settled, that a juror may be a witness on a trial before himself and his fellows, first being sworn as a witness, besides his oath as a juror. (Rex v. Rosser, 7 C. & P., 648; Manley v. Shaw, Car. & M., 361; Anon., 1; Salk., 405; Bennett v. Hundred of Hartford, Styles, 233; Fitz James v. Moyes, Siderfin, 133.) But where the judge, who is called to the witness box, is actually trying the cause, and his continuance in action as judge is necessary to the seemly and proper trial of the cause, then he may not become a witness; it is error so to do, and if objection be made, and exception taken, it is fatal error. In North v. Champernoon. (Cases in Ch., pt. 2, p. 78), it was held: If a commissioner in a cause be himself examined as a witness, he must be first examined; and if others be before him examined in his presence, he cannot be afterward examined, having heard the former examinations. A commissioner, who had so done, came up afterward and was examined in court; but his deposition was suppressed on motion. People v. Dohring, 59 N. Y., 374. In Ross v. Buhler (2 Martin [N. S.,] [La.], 312), it was held, that one cannot be examined as a witness at a trial where he sits as judge. One of the reasons there given does not apply to the case in hand. It was asked there, who is to administer the oath? But that was done in the court below, in the case in hand, by the clerk. It is though, as applicable in this case as that, the consideration that the judge is to determine on his own competency, and whether to give a non-suit in a civil case, or to instruct the jury to acquit in a criminal one. (The People v. Bennett, 49 N. Y., 137.) Other considerations may be added. If a judge is put upon the stand as a witness, he has all the rights of a witness, and he is subject to all the duties and liabilities of a witness. It may chance, that he may, for reasons sufficient for himself, but not sufficient for another of equal authority in the court, decline to answer a question put to him, or in some other way bring himself in conflict with the court. Who shall decide what course shall be taken with him? Shall he return to the bench and take part in disposing of the interlocutory question thus arising, and upon the decision being made, go back to the stand, or go into custody for contempt? The first would be unseemly, if not unlawful, for it would be passing judicially upon his own case. The last would disorganize the court and suspends its proceedings. Other like results may be conceived as possible, equally as contrary to the good conduct of judicial proceedings. (Reg. v. Gazard, 8 C. & P., 595; see an interesting footnote, 1 Campbell's Lives, Ch. Jus., 166.) Therefore the inclination of the courts has been to hold, that when it is necessary for the conduct of the trial that one should act as judge, he may not be called from the bench to be examined as a witness; but when his action as a judge is not required, because there is a sufficient court without him, he may become a witness; though it is then decent that he do not return to the bench. (See, also People v. Miller, 2 Park. Cr., 197; Morss v. Morss, 11 Barb., 510.) In the case here, the justice of the sessions, who was examined as a witness was a necessary part of the court, without whose continued presence and assisting action it would have been broken up, as we have seen from Blend v. People (supra). It was erroneous for him to become a witness in the case. People v. Dohring, 59 N. Y., 374. The error is not available here, because he was examined by the consent of the People and the prisoner. But the fact is not relied upon as error. A more fundamental position is taken. It is insisted that the court became no court, and the county judge and the other justices of the sessions lost jurisdiction of the case. We are not of that mind. All the constituents of the Court of Sessions were together in one place. All and each were ready and able to perform each and every duty incumbent upon them. That one of the members of the court was not in the place in the room customary for one to occupy holding his office, did not disorganize and disrupt the court: If so, a temporary absence from the bench for any purpose would work the same result; Blend v. People (supra) pronounces against such effect. We have seen that a juror may be sworn and give his testimony to the court and to his fellows without breaking up the panel, yet he for the moment may be out of the jury box and performing a double duty, rendering his testimony as a witness, and noting its effect in aiding or abating the force of that which had gone before it. The attitude of a judge standing as a witness is not different in result upon his judicial function. He still retains it and is still in the exercise of it, still has his jurisdiction of the case before him, together with his fellows on the bench. All of the component parts of the court are present together and co-operating, all the requisites of jurisdiction still exist as lively as when the trial began. There was no physical impossibility, as there was in Blend v. The People (supra), in Justice Baker at any moment on the arising of a question asking a decision from the bench, joining with the other members of the court in arriving at and pronouncing it. Cancemi's Case (18 N. Y., 128), and others (The People Campbell, 4 Park., 386; Grant . The People, id., 527), are cited. They They are not applicable. In the first, confessedly, there was not present for a part of the trial, nor on the rendition of the verdict, a full and constitutional panel of jurors. One had been withdrawn from the panel and had been dismissed from the case, and but eleven remained doing the duty which by law could People v. Dohring. 59 N. Y., 374. be done only by twelve. It was held that consent in a criminal case would not give jurisdiction to a tribunal not known to the law. The People v. Campbell, is like it. It holds that where a court is without jurisdiction, consent cannot give it in a criminal case. Grant v. The People, holds that an issue upon a special plea to an indictment can only be tried by a jury, and consent cannot give jurisdiction to the court to try it without a jury. But here, as we have shown, the tribunal created by the law, had regularly acquired jurisdiction of the case, and remaining in due and orderly session, retained it to the end, without aid from the consent of the parties, or either of them. |