leaving their seats; and this, whether the jury retire from the court, or the court leaves them alone in the court-room.1 Where, after a trial had commenced before a court of special sessions, a postponement took place at the instance of the prisoner for several days, and the jury were allowed to separate in the meantime, having been previously admonished by the court, however, not to converse with any one in relation to the case, it was held not a sufficient ground for reversing the conviction, especially as no misbehavior on the part of the jurors was alleged. The fact that on a trial in a justice's court, the jury, during their deliberations, had in their possession the minutes of the testimony taken by the counsel for the successful party, is sufficient cause for reversing the judgment.3 But where the justice, while the jury are deliberating upon their verdict, enters the jury room at their request, and with the knowledge and consent of the defendant, a consent that he may read to the jury the testimony of a witness will be implied.* § 40. VERDICT. When the jurors have agreed on their verdict, they shall deliver the same to the court publicly, who shall enter it in the minutes of its proceedings to be kept by the court.5 The verdict of the jury cannot be reviewed upon the ground that it was against evidence, and the appellate court cannot pass upon the question whether the finding by the jury, before a court of special sessions, was against or without evidence." § 41. PUNISHMENT ON CONVICTION. Whenever a defendant, tried under the above-mentioned provisions of the statute, either by the court or by a jury, shall be convicted, the court shall render judgment thereupon, and inflict such punishment by fine or imprisonment, or both, as the • Vanderwerker v. Peo., 5 Wend., 530; 12 Wend., 344. nature of the case may require, but such fine shall in no case exceed fifty dollars, nor such imprisonment six months.1 § 42. OF THE ACQUITTAL OF THE DEFENDANT AND CONCERNING COSTS. Whenever a defendant, tried under the provisions of the statute above referred to, either by the court or by a jury, shall be acquitted, he shall be immediately discharged. And if the court before whom the trial is had shall certify in its minutes that the complaint was willful and malicious, and without probable cause, it shall be the duty of the complainant to pay all the costs that shall have accrued to the court and constable in the proceedings had upon such complaint, or to give a satisfactory bond to the people of this State, with one or more sureties, to pay the same in thirty days after the said trial. If the complainant shall refuse or neglect to pay such costs, or to give such security, the court may forthwith enter judgment against him for the amount of such costs, and commit him to the common jail of the county in which the trial was had, there to remain, in like manner and for the same time as if committed on a justice's execution in a civil cause, until he shall satisfy such judgment, with the costs of the commitment, or until he shall be discharged by due course of law.2 The last mentioned provisions of the Revised Statute were amended by the Legislature of 1845, by the following enactment: Whenever a magistrate or a jury, before whom a criminal cause shall be tried under the act reorganizing courts of sessions, shall be satisfied from the evidence and proceedings had before them, that the person or persons charged and tried were complained of and proceeded against without probable cause, and with malicious intent to injure or harass, they may render a verdict for costs against the complainant; whereupon the magistrate shall enter judgment for the amount of such costs upon which an execution may issue against the property or person of such complainant, in the same manner as upon a judgment rendered for a tort by a justice of the peace.3 12 R. S., 714, § 19. * 2 R. S., 714, §§ 20, 21. • Laws 1845, ch. 180, § 16, p. 186; 2 R. S., 714, § 22. § 43. JUDGEMENTS, HOW EXECUTED. The judgment of every court of special sessions shall be executed by the sheriff, constables and marshals of the county, or city and county in which the conviction shall be had, by virtue of a warrant under the hands of the magistrate who held the court, to be directed to such officers or to such of them as may be necessary, and specifying the particulars of such judgment.1 A court of special sessions, before whom a conviction is had, may proceed and cause their judgment to be executed, notwithstanding notice of an intention to remove the conviction and the entrance into recognizance by the defendant, if a certiorari is not sued out.2 A warrant of commitment issued, by a justice of the peace upon a conviction for petit larceny, is void unless it be directed to the officer or class of officers by whom it is to be executed, and will afford no protection to a constable who executes it. The Legislature, by the section of the statute relative to warrants of commitment issued by courts of special sessions, did not intend to prescribe a form for such warrants, or to vary the common law rule respecting them; hence a warrant which would be good at common law will be valid under the statute.3 The commitment need not state facts, which the statute does not require that the record of conviction should state. Thus, under the provisions of the statute, prescribing that, in any other county than New York, the record "shall briefly state the offence charged, and the conviction and judgment thereon, and if any fine has been collected the amount thereof, and to whom paid," the necessity of averring the jurisdictional facts in the writ is dispensed with, by the provision that the record need not set forth those facts. Hence a commitment, issued upon a conviction before a court of special sessions, need not contain a statement that the defendant, when brought before a magistrate, requested to be tried before a court of special sessions; nor that, having been required by the magistrate to give bail, the defendant omitted for twenty-four hours to do so; nor whether the defendant demanded a jury.5 hear and determine the accusation. Before the act of 1855 it is presumed 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 18551 made a very material change; it greatly enlarged the powers of courts of 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; and where a party is brought before the special sessions of the city of New York, and enters into a recognizance 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 by the general sessions, and the special sessions thereafter has no jurisdiction of the case, and this is so whether the accused was informed or not by the magistrate or the clerk of special sessions that it was his privilege to elect to be tried at the general sessions, as required by the statute.2 In all cases of misdemeanors in the city and county of New York, where the accused, upon being arrested and brought before the committing magistrate, shall elect to have his case heard and determined by the court of special sessions, agreeably to the provisions of the statute above referred to, the affidavit of complaint shall be forthwith filed with the clerk of said court to the end, 1 Laws 1855, p. 613, ch. 337. Peo. v. Doyle, 19 How., 11. that the said court may proceed to hear and determine the same according to law. If the accused be admitted to bail after electing to be tried by the court of special sessions, a recognizance shall be taken for the appearance of the accused at the said court of special sessions, which shall also be filed with the clerk of said court; and if the accused shall fail to appear, pursuant to the condition of said recognizance, the said court shall, by an order entered in their minutes, direct the same to be forfeited, and the clerk thereof, shall return said recognizance, with a certified copy of the minutes forfeiting the same, to the district attorney of the city and county of New York, to the end that the accused and sureties may be prosecuted thereon according to law.1 The statute provides that in hearing and determining any accusation, according to the above mentioned provisions of the statute, the special sessions shall proceed in the same manner as hereinbefore mentioned for trials in courts of special sessions in other parts of the State, except as to the summoning of a jury, and upon the conviction of the offender, shall sentence him to the punishment prescribed by law. The statute further provides for the powers of this court, by issuing warrants to enforce its judgments and orders, and to bring accused persons before it for trial or judgment, and issuing subpoenas for witnesses, attachments for contempt, and other process necessary for the proper conduct of the court; the process to be tested in the name of any justice of the court and signed by the clerk, and the subpoenas to be served by some proper person under the direction of the clerk.3 When poor witnesses for the people have been committed, the court may order the payment to them of such sum as may seem reasonable, not exceeding ten dollars.* In cases of arrest for intoxication or disorderly conduct in the city of New York, the police justices, in addition to holding the party to bail for good behavior, have power to impose a fine not exceeding ten dollars, or to commit to the city prison not exceed ing ten days, each day of imprisonment to be taken as a liquidation of one dollar of the fine. The fines collected by wardens 1 Laws 1859, ch. 491, § 1, p. 1129. ' 2 R. S., 715, § 51; Peo. v. Riley, 5 Park., 409; Murphy v. Peo., 2 Cow., 815. . Id., § 2. • Id., § 3. |