(41 Misc. Rep. 227.)

#### PEOPLE v. HALWIG.

(County Court, Oneida County.

July, 1903.)

1. Criminal Law—Demand for Jury Trial.

A jury trial is waived on an arraignment in the city court of Utica unless a jury is demanded two days before the day on which the trial is set down under Laws 1882, p. 93, c. 103, as amended by chapter 60, p. 99, Laws 1888, and chapter 154, p. 178, Laws 1889, though Code Or. Proc. § 702, authorizes the demand for a jury trial any time before the court hears the testimony.

2. Same—Assault—Appeal.

Where, on appeal from a conviction for assault, the return fails to show that any evidence was given tending to prove defendant committed the alleged offense, the conviction must be set aside.

Appeal from City Court of Utica.

Martha Halwig was convicted of assault in the third degree, and appeals. Reversed.

Bradley Fuller, for appellant.

Josiah Perry, for the People.

DUNMORE, J.

The first ground of error alleged in appellant’s affidavit is that she was refused a trial by jury. At the time defendant was arraigned, her counsel waived a jury trial. Upon the adjourned day, before any testimony was taken, her counsel demanded a jury trial, which was refused. Section 702 of the Code of Criminal Procedure provides that, “before the court hears any testimony upon the trial, the defendant may demand a trial by jury.” In People v. Molinet, 13 Misc. Rep. 301, 34 N. Y. Supp. 1114, it was held that, in a case of which the Court of Special Sessions has exclusive jurisdiction in the first instance, the right of the defendant to demand a jury trial continues until testimony is actually taken, notwithstanding his previous waiver of a jury trial. But the City Court act of the city of Utica (chapter 103, p. 93, of the Laws of 1882, as amended by chapter 60, p. 99, Laws of 1888, and chapter 154, p. 178, Laws of 1889) provides that a trial by jury must be demanded two days before the day upon which the hearing or trial is set down for. That was not done in this case, and as the City Court provision was enacted after the enactment of the Code of Criminal Procedure, and is a special act, its provisions must prevail over any conflicting provision of the Code of Criminal Procedure. I do not think, therefore, that the re*222fusal of a jury trial to defendant upon the adjourned day, she having previously waived a trial by jury, was reversible error.

Another point raised by the appellant is that the return fails to show that defendant committed the offense of which she was convicted. One of the errors alleged in appellant’s affidavit was that all the evidence, papers, and proceedings taken and had did not warrant the conviction of defendant of the crime of assault in the third degree. That return required the City Court of Utica to return all the evidence upon the subject. Code Cr. Proc. § 756; People ex rel. Baker v. Beatty, 39 Hun, 478. The return failed to show that any evidence was given proving or tending to prove that defendant committed the alleged offense. Counsel for neither party applied for an amended or further return. Counsel for the people contended that, in the absence of a certificate in the return that it contains all the evidence, the appellate court must presume that evidence was given sufficient to sustain the finding, and cites Soule v. Veyrac, 13 Misc. Rep. 167, 34 N. Y. Supp. 112; Brooker v. Filkins, 9 Misc. Rep. 146, 29 N. Y. Supp. 68; and Schwinger v. Raymond, 105 N. Y. 648, 11 N. E. 952. I do not think the rule invoked applies to appeals from Justices’ Courts or Courts of Special Sessions. My attention has been called to no case so holding. The proceedings, practice, and pleadings, including appeals from the City Court, are governed by the provisions of the Code of Criminal Procedure relating to Courts of Special Sessions, except as otherwise in said City Court act provided. City Court Act (Laws 1882, p. 94, c. 103, § 6). Furthermore, such a rule could not very well apply to appeals of this kind, for the reason that on appeals from Courts of Special Sessions the court is not required to return all the evidence, but only so much of the evidence as pertains to the errors alleged in the affidavit. People v. McGann, 43 Hun, 57. 1 am therefore of the opinion that, unless the return contains sufficient evidence to show that the defendant was guilty of the offense of which she was convicted, it is the duty of this court to reverse the conviction. As the return contains no evidence proving or tending to prove that defendant committed the crime of assault in the third degree, the judgment must be reversed.

Judgment of conviction reversed.