The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-08-10

jury and Consequently, that II this law did, in express
that portion Of void and to be- disregarded BY every
judicial tribunal But the conclusion to which have
which the prisoner was arrested renders further dis
cu.scn Of this point Unnecessary That portion of the
hf section OF the act which bears upon the question
raised in the present case is
city Judge and In addition, n the city q York e Re-
justices Of The drc, courts and in All cities here
ssa u ays q. s
arising under any Of The provisions of This they
sessions the offences and UNDER this act e 10
courts Of special sessions dc coas aisl ana
fer and include each officer named in this ssciioa such
naon sY bor before apo ssra se % e1a
suS IS. 1Ddsp his sa Ss @ trial
Ey this section the magistrates named have authority
to sue process to hear and determine charges TO pun
III for offences under the act to hold courts OF special
esscns for the trial Of the offences and to do all other
eta that justices OF the peace do in criminal cases.
nd cxerciFe the same authority that justices
If tie peace and courts OF special sessions may
xe,cie. But it consers powers upon courts
# special sessions. This gives to each Of these mags-
traes fin authority to hnve an examination as in other
criminal cases, to determine whether there il probable
to hold the prisoner for tria to demand bail
DO not from this section how it be held that
TIE prisoner he does not elect to be tried by court Of
special sessions can be deprived of the statutory
provision permitting examination OF the complainant
end lis witness in each case The only purt ofthe
ion which can be supposed 10 take away the right to
this examination and the right to require the magistrate
to discharge him s on giving bail is the follow
shan not be required to take the examination
Of any person brought before il, upon charge of
offence under this net, but shall proceed TO trial
soon thereafter as the complainant can be notfed.'
This declares emily that the Court of Special Sessions shall
not be required to take the examination of the prisoner
As that Court never possessed the TO take such
intended to relieve the magistrate issuing the
process from the burden Of examination
IN the Of complaints for selling intoxicat-
ing liquors. And this was within the power
oftle Legislature, had any language been used which
could effect that object would have felt bound to
eonstrue 1t Is to carry out the intention of the Iega
lure But cannot by any possible construction, say
such magistrate &C. And without substituting
words other than those in the law the right of the
prisoner to an examination is not taken away. And
power is not legislative but judicial only am not
at liberty to change the act In single letter to
accomplish the intent of it, trainers. But it is commended
that his sentence requires the Court Special Sessions
to proceed to trial after the prisoner brought be-
fore it, the complainant be notified that the prison
by this deprived Of the right to give bail and the
magistrate is not empowered to take it. The difficulty
with this construction is that the Special Sessions
only be organized after the prisoner has elected to be
trIed by such Court or has for twenyfour hours ne
elected refused to give bail And consequently he is
not brought before such Court until after his right to
give bail has either been waived by election neglect
And more than this the Court of Special Sessions
possessed the right to take bail for any offence Whereas
under consideration, each of them have by sta
tute, X. :. 7l0, power to set to bail in all
OF msdemeanor" The offence with which the pri-
oner is charged Is by this act declared to be INSIDE
meanor, and part of the law in terms by
sary implication, repeals the law authorizing these
gstrates to take bail in all Of misdemcaor, must
hold that the Recorder should taken bail when it
was offered. BY the acts constituting the Recorders
Court for this city, the Recorder has the ursdc
ton to criminal Justices of the Peace through
out the State and consequently whatever is said in
ference to the and duties of the Recorder under
This section equally applicable to Justices Of the
Peace, and every magistrate named in the fifth section
# was the intention of the Legislators to take away
the ordinary right to examination and bail the act
should have forbidden the magistrate before whom the
accused ia brought from taking such examination and
ball. But there is such prohibition. The confusion
mistake If there s has arisen from the neglect
the part Of the lawmakers to distinguish between
magistrates such and the court OF special sessions
The conclusions to which have arrived in this
j. That the right to trial by common law jury OF
twelve men in of misdomeanOr is secured by the
constitution, and cannot be taken away by the Iegs
lature.
2. That the law In reference TO examination apph-
cable to other of msemcanor ia alike applicable to
offences for selling intoxicating liquor contrary the
provisions Of the prOhibtory law.
!: That the person charged with offence for selling
Intoxicating liquor contrary to the provisions Of the pro-
hibtory law, has the right to give bail to appear and
answer at the next criminal Court having cognzancc Of
the offence and in which he may be indicted the same "A
n other misdemeanors triable by a Court of Special
Sessions.
The prisoner giving satisfactory bail in the sum of
$500 conditioned required by law must be discharged
have reached this conclusion the examination of this
original question, but am fully supported by
two Of my brethren, Judges Norris Parker each of
when have had similar before them, and have
come to like conclusion.