SECTION II.

WHO TO ALLOW CERTIORARI.

A writ of certiorari to remove into the court of sessions of the county, a conviction had before any court of special sessions or police court, may be allowed on the application of the party convicted, by any justice of the Supreme Court, or by any officer authorized to perform the duties of such justice in vacation.'

Whether a certiorari to remove a conviction by the special sessions into the Supreme Court, for review under 2 Revised Statutes 717, is to be allowed or not, is in the discretion of the judge to whom the application is made, and his determination is not reviewable by certiorari.2

SECTION III.

WHEN TO BE APPLIED FOR, AND AFFIDAVIT.

The party desiring such certiorari, or some one in his behalf, shall apply for the same within ten days after such conviction shall have been had, and shall make an affidavit specifying the supposed errors in the proceedings or judgment complained of.3

The affidavit here mentioned is the initiatory step in the proceedings, and should be made within the ten days limited by the statute. It should state the proceedings had and taken prior to the conviction, and show the supposed errors complained of.

SECTION IV.

WHEN TO BE GRANTED.

If the officer to whom application for such certiorari shall be made, shall be satisfied that any error shall have been committed in the proceedings or the judgment, he shall indorse upon the writ his allowance thereof, and shall certify the affidavit upon which the certiorari was allowed. But where the defendant shall

1 Laws 1859, ch. 339, § 2.

Peo. v. Moyer, 16 Barb., 362.

3 2 R. S., 4th ed., p. 902, § 48; 1 R. S., 717, § 48.

have been tried by a jury, no certiorari shall be allowed, upon the ground that the verdict of such jury was against evidence.1

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; and therefore, though the facts of the case be returned, they will not look into them to see whether or not the jury erred.2

SECTION V.

SERVICE OF THE WRIT AND AFFIDAVIT ON MAGISTRATE.

The said writ and original affidavit shall be delivered to the magistrate, before whom the conviction was had, within ten days after such allowance.3

SECTION VI.

RETURN TO THE WRIT AND FILING OF PAPERS.

The magistrate to whom the certiorari shall be directed, shall make a special return to all the matters specified in the affidavit accompanying the writ, and shall cause such writ, affidavit and return to be filed in the office of the county clerk within twenty days after the service of the said writ."

SECTION VII.

RETURN, HOW COMPELLED.

The court of sessions have the like power to compel the making of such return, and to require the same to be amended and perfected, as the Supreme Court has in cases of mandamus.5

1 2 R. S., 4th ed., p. 902; 1 R. S., 718, § 49.

• Vanderwerker v. the People, 5 Wend., 530; Son v. the People, 12 Wend., 344.

2 R. S., 4th ed., p. 903, § 50.

2 R. S., 4th ed., p. 903, § 51, as amended by the act of 1859.

Idem, § 52, as amended by act of 1859.

SECTION VIII.

SERVICE OF PAPERS AND NOTICE OF ARGUMENT.

A certified copy of every certiorari to remove into the Supreme Court a conviction had before a court of special sessions, together with a certified copy of the affidavit upon which the writ is allowed, and of the return thereto, shall be served by the party prosecuting the writ, upon the district attorney of the county in which the conviction to be reviewed was had, with at least four days' notice of the argument thereof.1

SECTION IX.

DUTY OF THE DISTRICT ATTORNEY.

It shall be the duty of the district attorney to attend to the argument of the same, and perform such duties in relation thereto as have heretofore been performed by the Attorney General.3

On certiorari to the special sessions, the return of the justice brings in review their proceedings as a court, and not the previous proceedings of the justice who issued the warrant, and a conviction cannot be reversed for his error in not examining the plaintiff and defendant.3

SECTION X.

HEARING ON THE RETURN BY COURT OF SESSIONS.

It shall not be necessary for the party convicted to appear in the court of sessions upon the prosecution of such certiorari, nor shall any assignment of errors or joinder in error be necessary; but the court of sessions shall proceed to hear the parties and give judgment on the return to such writ.4

'Vandewerker v. Peo., 5 Wend., 530; Son v. Peo., 12 Wend., 344.

SECTION XI.

STAYING EXECUTION ON CONVICTION.

If, at the time of his conviction, any defendant shall notify the magistrate before whom the same shall have been had, that he intends to remove such conviction by writ of certiorari, and shall offer to become bound in a recognizance, with satisfactory sureties, to appear at the next court of sessions to be held in the same county, and to abide the judgment or order of that court in the premises; it shall be the duty of such magistrate to take such recognizance, and thereupon to suspend the execution of any sentence upon such conviction. But such sentence shall be pronounced and entered in the minutes of the proceedings.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 entering into a recognizance by the defendant if a certiorari is not sued out.2

SECTION XII.

DISCHARGING PRISONER.

If the party convicted shall have been committed to prison in pursuance of his sentence, upon becoming bound with a condition, as provided in the last section, with such sureties as shall be approved by the officer allowing the writ of certiorari, he shall be entitled to be discharged from such imprisonment, and the certificate of such officer, stating the facts and ordering the jailor to discharge such prisoner, shall be a sufficient warrant for his discharge.3

SECTION XIII.

FILING THE RECOGNIZANCE.

The magistrate or officer by whom any recognizance, under either of the two last sections shall be taken, shall immediately cause the same to be filed with the clerk of the county.1

SECTION XIV.

PROCEEDINGS ON THE RECOGNIZANCE.

The court of sessions, in which the party so convicted and recognized shall be bound to appear, shall have the power to continue such recognizance, or to require a new recognizance with further or other sureties, until the decision of the court of sessions shall be had in the premises, and in default of complying with any such requisition, the said court of sessions may commit the party so committed to close custody.1

SECTION XV.

JUDGMENT.

If the conviction be reversed, and the defendant be in prison by virtue thereof, the court of sessions shall issue a writ of superseedeas for his discharge. Under the Revised Statutes, prior to the amendment thereof by the act of 1859, where the defendant was let to bail as above provided, the judgment of the supreme court, whether the conviction was reversed or affirmed, was remitted to the court of sessions of the proper county, to be by that court carried into effect; but, as the court of sessions by the act of 1859 was substituted for the supreme court in these proceedings, the practice of a remittitur is abrogated. In Pulling v. The People, 8 Barb., 389, the court said: "Upon a proceeding of this nature, any error in the proceedings or judgment, whether in the record, or in receiving or rejecting evidence or the like, may doubtless be examined by this (supreme) court. They are probably restricted from reversing the conviction, on the ground that the verdict is against the weight of evidence. But any other errors in the proceedings and judg ment, which appear on the face of the return, can surely be examined by this (supreme) court. It would be an idle ceremony to require a return of all the proceedings before the justice, if this court must shut its eyes to everything but the technical record."

12 R. S., 4th ed., p. 903, § 58, as amended by act of 1859. 'Id., § 59.