(51 Misc. Rep. 71.)

#### PEOPLE v. JACOBS.

Onondaga County Court

June, 1906.

1. Criminal Law—Appeal prom Court op Special Sessions—Notice op Appeal.

Under Code Cr. Proc. § 751, an appeal from the determination of a Court of Special Sessions may be taken both from the judgment and from the commitment, and a notice of appeal from “such conviction and sentence,” stating that the sentence and commitment are illegal, shows the intent of the appellant to review the commitment as well as the judgment.

2. Same—Commitment—Validity.

A commitment of a Court of Special Sessions which states that defendant was convicted of the assault, but does not show the degree thereof as required by Code Cr. Proc. § 721, nor state facts showing that the crime was one of which the court had jurisdiction and not a felony, is cause for reversal of the judgment and; discharge of defendant.

[Ed. Note.—For cases in point, see.vol. 14, Cent. Dig. Criminal Law, §§ 562-566.]

Appeal from Justice Court.

Edward Jacobs was convicted of assault, and appeals. Reversed, and defendant discharged. .

Irving J. Higbee, for appellant.

George W. Standen, Asst. Dist. Atty., for the People.

*735ROSS, J.

Section 515 of the Code of Criminal Procedure provides ■ that the only method of reviewing a judgment or order in a criminal action or proceeding is by appeal.. Section 751 of the Code of Criminal Procedure provides how an appeal from a determination of a Court of Special Sessions, i. e., a criminal court held by a justice of the peace, shall be taken. “Por the purpose of appealing, the defendant, or some one on his behalf, must, within sixty days after the judgment, or within sixty days after the commitment where the appeal is from the latter, make an affidavit showing the alleged errors in the proceedings or conviction or commitment complained of.” Two appeals are contemplated, one from the judgment and another from the commitment. Prior to 1897 an appeal from the judgment had to be taken within 10 days after the rendition of the judgment; or within 20 days after the commitment, where the appeal was from the latter. Paws 1897, p. 26, c. 39. In other words, a defendant can review either the judgment, including the regularity of the proceedings which resulted in his conviction or the commitment, or, if his notice of appeal is broad or precise enough, both; but, upon an appeal from a judgment only, an error in the commitment cannot be presented for a review. It is somewhat doubtful in this case whether the appeal is broad enough to include a review of the commitment. The notice of appeal contains, with other matters, the following: “Deponent says that he hereby appeals to the County Court of the county of Onondaga from the said conviction and sentence; * * * ” and again: “That said deponent was improperly and illegally convicted and sentenced. * * * And that the sentence and commitment are illegal and void.” I think that a fair interpretation of this language justifies the view that the appellant intended to review the commitment. The return of the justice does not disclose any error committed upon the trial, and the return is conclusive as to what occurred upon the trial, and cannot be contradicted by affidavits. Thompson v. Sheridan, 80 Hun, 33, 29 N. Y. Supp. 868, and cases.

As the judgment presents no matter for reversal, the only matter to be considered upon this appeal is the error claimed to exist in the commitment, and the only error relied upon must be pointed out in the notice of appeal. .People v. Giles, 152 N. Y. 136-141, 46 N. E. 326; People v. Jewett, 69 Hun, 550, 23 N. Y. Supp. 942. There are several irregularities in the commitment but, for the reason stated, they are not subject to review upon this appeal. The sole error presented is pointed out in the notice of appeal as follows:

> “Deponent further says that the warrant and the commitment is void and illegal for the reason that it does not show that the said deponent was convicted of a crime, but it says the deponent was convicted of assault, but does not specify the degree thereof. * * * ”

Section 721 of the Code of Criminal Procedure provides the form of a certificate or record of conviction. It requires that the offense shall be briefly designated. In the case of People v. Gray, 67 How. Prac. 456, the defendant was convicted by a justice of the peace of the crime of “assault and battery committed on Norman Potter,” and it was insisted, as a reason for the discharge of the defendant, that there is not now any such crime known to the law as assault and battery, as that *736offense is now styled and designated an assault in the third degree. The writ of habeas corpus was discharged, and the defendant remanded, it being held by Mr. Justice Westbrook, before whom the matter came, that, as section 219 of the Penal Code, defines an assault in the third degree, “a person who commits an assault, or an assault and battery * * * is guilty of assault in the third degree,” and as the commitment used the same language, it was a sufficient description of the offense; that it was not necessary that it should be “called by it's technical name, providing the description of the act which constitutes the defense is clear and precise and leaves no doubt as to its exact character.” In the case of People v. Maschke, 2 N. Y. Cr. Rep. 168, in which the defendant sought to be released upon a habeas corpus, he being held by virtue of a commitment in which the crime was designated as “the misdemeanor of assault and battery upon John G. Griffith committed in said city and .upon his conviction for the misdemeanor aforesaid he was ordered to be imprisoned,” etc., Mr. Justice Bartlett dismissed the writ and remanded the prisoner, but made the statement that, had the judgment of the Special Sessions simply convicted the prisoner of assault and battery,- he would have no hesitation in ordering his discharge. See note, same report, page 306. Upon appeal this decision was sustained, Mr. Justice Daniels writing the opinion in which the following language was used:

> “The argument that the assault may have been a felonious one, and. therefore not within the jurisdiction of the court before which the trial was had, is not supported by the record of the conviction. For by that it appears that the assault and battery of which he was convicted was a misdemeanor, and it was equivalent to the assertion or statement that it was an assault in the third degree, and probably a mere statement of the fact that he had been convicted of an assault and battery without anything further would be entitled to the same consideration and effect.”

But in the case at bar the offense is not designated with the precision required by section 721 of the Code of Criminal Procedure. The facts are not stated,' as in the two cases last above stated, showing that the crime was one of which the court had jurisdiction, but for aught that appears it may have been a felony. While it appears from the return of the justice that he made an intelligent and just disposition of the case on the merits, it is more important that a person shall not be deprived of his liberty, except in substantial compliance with the law, than that this particular defendant should remain a few days more in prison.

For the reasons stated, the judgment must be reversed, and the defendant discharged.

Judgment reversed and defendant discharged.