After a trial by jury the court cannot on certiorari reverse it, as against the weight of evidence,1 and it cannot be reversed on the merits on certiorari.2 SECTION XVI. PROCEEDINGS UPON THE JUDGMENT. If the conviction be reversed the court of sessions shall discharge the defendant; if the conviction be affirmed, and the defendant shall have been sentenced by the court of special sessions, such court of sessions shall order that such sentence be executed; and if the defendant shall have been let out of prison, as above provided, he shall be remanded to such prison for the remainder of the term for which he was sentenced. If the conviction be affirmed, and the defendant shall not have been sentenced, the court of sessions shall proceed to sentence the defendant upon such conviction, in the same manner and with the like effect as if such conviction had been had in the court of sessions.3 SECTION XVII. QUASHING THE CERTIORARI. If it shall appear to the court of sessions that the person, prosecuting such certiorari, has unreasonably delayed to notice or bring on for argument the return to such writ, such court may enter a rule to quash such certiorari, and such court shall proceed thereon in the same manner as if the judgment of the court of special sessions had been affirmed in the court of sessions.* 12 R. S., 4th ed., p. 903, § 59. • Thomas v. Peo., 9 Wend., 480. 2 R. S., p. 903, §§ 60, 61. • 2 R. S., 4th ed., p. 904, § 62, as amended by the act of 1859. CHAPTER XII. OF THE PRACTICE AND PROCEEDINGS IN COURTS OF OYER AND TERMINER AND COURTS OF SESSIONS UPON THE FINDING, PRESENTMENT AND TRIAL OF INDICTMENTS. In treating of the proceedings taken for the arrest and punishment of offenders against the criminal law in the foregoing pages, we have seen that in certain cases the accused passed from the jurisdiction of the magistrate who issued the warrant upon which the defendant was arrested. This loss of jurisdiction by the magistrate was caused either by the commitment of the accused person to the common jail of the county, or else he was let to bail, to appear at the next court having cognizance of the offence; and in either of these cases, as well as in cases where no previous action has been taken against the accused person, if it be deemed desirable to proceed further with the prosecution, the course to be pursued is, by indicting the accused. An indictment is a written accusation of one or more persons of a felony or misdemeanor, preferred to and presented upon oath of a grand jury.' It is not our purpose at present to treat of the form and requirement of the indictment; that subject will be found discussed in another place; but it is our design in this chapter to take into consideration the practice and various proceedings had in the courts of oyer and terminer and of sessions upon the preferring, presentment and trial of an indictment; and the rules here laid down will, in the main, be found applicable to the other courts in the State in which indictments may be found and tried, The principal difference being special enactments of the Legislature, which are made applicable in some instances to courts of a local jurisdiction. These distinctions will be found mentioned in the chapter entitled, "Of the several criminal courts of the State, and their jurisdiction."2 In examining the subjects spoken of in this chapter, they will be found arranged in the following order: Section one. Of the proceedings from the organization of the court down to the finding and presentment of the indictment. 4 Blac. Com., 302. • Ante, page 29. Section two. Of the proceedings from the presentment of the indictment down to the trial. Section three. Of the proceedings from and including the trial down to and including the verdict. Section four. Of the sentence and punishment. SECTION I. OF THE PROCEEDINGS FROM THE ORGANIZATION OF THE COURT DOWN TO THE FINDING AND PRESENTMENT OF THE INDICTMENT. Section I.-THE DISTRICT ATTORNEY'S PRECEPT FOR COURTS OF OYER AND TERMINER. III.-CALENDAR OF PERSONS CONFINED IN JAIL TO BE FURNISHED COURTS OF OYER AND IV. OF EMPANNELING THE GRAND JURY. V. OF THE GRAND JURY. VI.-OF THE RETURN AND SUMMONING OF THE GRAND JURORS. VII.-OF HEARING EXCUSES BY THE GRAND JURORS. VIII.-OF CHALLENGES TO THE GRAND JURORS. IX. OF TALESMEN FOR THE GRAND JURY. X.-APPOINTMENT OF A FOREMAN TO THE GRAND JURY. XI-OF THE OATH TO THE GRAND JURY. XII.-THE JUDGE'S CHARGE. XIII.-OF THE SELECTION OF A CLERK TO THE GRAND JURY. XIV. OF THE PROCEEDINGS HAD BEFORE THE GRAND JURY. XV.-OF THE TIME WITHIN WHICH THE INDICTMENT MAY BE FOUND. § 1. THE DISTRICT ATTORNEY'S PRECEPT FOR COURTS OF OYER AND TERMINER. It is the duty of the district attorney of every county, at least twenty days before the time appointed for the holding of any court of oyer and terminer and jail delivery in his county, to issue a precept, to be tested and sealed in the same manner as process issued out of the courts of oyer and terminer and jail delivery, and to be directed to the sheriff of his county.1 Every such precept shall mention the time and place at which said court is to be held, and shall command the said sheriff: 1. To summon the several persons who shall have been drawn in his said county to serve as grand and petit jurors at the said court, to appear thereat. 2. To bring before the said court all prisoners then being in 12 R. 8., 206, § 22. the jail of such county, together with all process and proceedings any way concerning them, in the hands of such sheriff. 3. To make proclamation in the manner prescribed by law, notifying all persons bound to appear at the said court, by recognizance or otherwise, to appear thereat, and requiring all justices of the peace, coroners, and other officers who have taken any recognizance for the appearance of any person at such court, or have taken any inquisition, or the examination of any prisoner or witness, to return such recognizances, inquisitions and examinations to the said court at the opening thereof, on the first day of its sitting.1 The sheriff to whom any such precept shall be directed and delivered, immediately on the receipt thereof, shall cause a proclamation in conformity thereto, signed by him, to be published once in each week until the sitting of the court, in one or more of the newspapers printed in the said county. The expense of such publication shall be a county charge. In regard to courts of sessions, it is provided by statute that it shall not be necessary for any precept to be issued to the sheriff to summon any grand jury for the court of sessions.3 The general term of the Supreme Court, in the Third Judicial district, have held that it is no good cause of complaint on the part of the defendant that no precept was issued by the district attorney to the sheriff, previous to the sitting of the oyer and terminer, and that its omission is not an irregularity of which any body can take advantage, and by one of the judges it was said that no such precept is now necessary for a regular court of oyer and terminer, while at the Onondaga general term, it was held that, to give validity to proceedings in the oyer and terminer, it is necessary that process for summoning the petit jury should be issued, and that it should also be returned and filed in the office of the clerk of the county, and that the issuing of the precept is necessary to give validity to the acts of the grand jury;5 and conflicting decisions have also been made as to whether the defend ant may, after verdict, on error, avail himself of the objection that no precept had been issued for summoning the grand jury.1 § 2. PROCLAMATION BY CRIER OF THE COURT. Upon the convening of the court at the time and place mentioned for its session, the first business done is the proclamation by the crier of the court. The county judge of each of the counties in this State is authorized to appoint, from time to time as shall be necessary, a suitable person to discharge the duties of crier of the courts of record to be held in and for said county; such person to be paid the same compensation as justices of the court of sessions are paid, and to hold his office during the pleasure of said county judge.2 The proclamation is made as follows: "Hear ye, hear ye, hear ye. All manner of persons that have any business to do at this circuit court and court of oyer and terminer (or court of sessions), held in and for the county of Rensselaer, let them draw near and give their attendance and they shall be heard. pre "Sheriff of the county of Rensselaer, return the writs and cepts to you directed, and delivered and returnable here this day, that the court may proceed thereon. "All justices of the peace, coroners, sheriffs and other officers who have taken any recognizances, examinations or other matters, return the same to the court here that they may proceed thereon. "Hear ye, hear ye, hear ye. All manner of persons who are bound by recognizances to prosecute or prefer any bill of indictment against any prisoner or other person let them come forth and prosecute, or they will forfeit their recognizances." § 3. CALENDAR OF PERSONS CONFINED IN JAIL TO BE FURNISHED COURTS OF OYER AND TERMINER AND OF SESSIONS. It is the duty of the keeper of every county prison or common jail to present to every court of oyer and terminer and to every court of sessions held in his county, at the opening of such court, a calendar, stating: 1. The name of every prisoner then detained in such prison. 'McGuire v. Peo., 1 Park., 148; Peo. v. Robinson, 1 Park., 235. 2 Laws 1855, ch. 530. |