judges of the court of appeals or a majority of them. But on the trial of an impeachment against the governor, the lieutenant-governor cannot act as a member of the court.

Taken from the constitution, art. 6, sec. 1.

§ 19. The president of the senate, or in case of his impeachment, death or absence, the chief judge of the court of appeals, or in the absence of both, such other member as the court may elect, is the presiding judge of the court.

§ 20. The clerk and officers of the senate are the clerk and officers of the court for the trial of impeach

ments.

§ 21. There are no stated terms of this court; but upon the delivery of an impeachment from the assenbly, the president of the senate must cause the court to be summoned to meet at the capitol in the city of Albany, on a day not less than thirty nor more than sixty days from the day of the delivery of the articles of impeachment.

Same as the judiciary act, Laus of 1847, p. 319, sec. 1.

§ 22. At the time and place appointed, and before the court proceeds to act on the impeachment, the clerk must administer to the presiding judge, and the presiding judge to each of the members of the court then present, an oath or affirmation truly and impartially to hear, try and determine the impeachment; and no member of the court can act or vote upon the impeach

ment, or any question arising thereon, without having taken this oath or affirmation.

Substantially the same as 2 R. S., 3d ed. 224; except that the word "impeachment" on the 6th line, has been substituted instead of the words "the charge in question," in conformity with the difference of phraseology in this respect, between the constitution of 1821, art. 5, sec. 2, and the present, art. 6, sec. 1.

§ 23. When the court is held during the recess of the legislature, the president of the senate, the senators, and the clerk and officers, of the court, are entitled to the same compensation for their attendance thereon, and for travelling to and from the place where it is held, as is allowed them at a meeting of the senate.

Taken from 2 R. S., 3d ed. 224, sec. 13, except that it includes the president of the senate and senators.

TITLE III.

OF THE COURTS OF OYER AND TERMINER.

SECTION 24. Court of oyer and terminer in each county.

25-27. Its jurisdiction.

28, 29. By whom held.

30. When and where held, and duration thereof.

§ 24. There is in each of the counties of this state, (except, that for this purpose, Fulton and Hamilton are deemed one county,) a court, denominated the court of oyer and terminer, with the jurisdiction conferred by the next three sections, and no other. But nothing contained in this section affects its jurisdiction in actions or proceedings now pending therein.

§ 25. The court of oyer and terminer has jurisdiction, 1. To inquire, by the intervention of a grand jury, of all public offences committed or triable in the county:

2. To try and determine any indictment found therein, or which may have been found at the court of sessions of the county, or at a city court therein, for an offence punishable with death:

3. To try and determine any indictment which may have been found at any of the courts mentioned in the second sub-division of this section, for an offence not punishable with death, and which may be sent or removed to the court of oyer and terminer, if in the opinion of that court it be proper to be tried therein:

4. To send any indictment found therein for an offence not punishable with death, or to send back any indictment which may have been sent or removed to that court, to the court of sessions of the county, or a city court therein, when in the opinion of the court of oyer and terminer, the same should not be tried in that court:

5. To inquire into the cause of the detention of persons imprisoned in the jail of the county, and make an order for their re-commitment or discharge, or otherwise, according to law:

6. To exercise the powers conferred upon it by other provisions of this code.

Substantially the same as 2 R. S., 3d ed., 270, 271, sec. 35, 36, 37.

§ 26. In addition to the jurisdiction conferred by the last section, jurisdiction was transferred to the courts of oyer and terminer in their respective counties, on the first Monday of July, 1847, of all indictments and proceedings then pending in the late courts of oyer and terminer; and also of all indictments and proceedings then pending in the late courts of general sessions of the peace, except in the city of New-York, and except in cases of which the courts of sessions may take cognizance, as provided in section 32.

Conformable to the Constitution, art. 14, sec. 5.

§ 27. Jurisdiction was likewise transferred to this court in the county of Monroe, on the thirtieth day of April, 1849, of all criminal actions and proceedings then pending in the late mayor's court of the city of Rochester, and of all proceedings incident to judgments rendered in that court in those actions and proceedings, on or before that day.

Taken from the act to abolish the mayor's court of the city of Rochester; Laws of 1849, p. 435, sec. 6.

§ 28. This court, (except in the city and county of New-York,) must be held by a judge of the supreme court as the presiding judge, together with the county judge, and two justices of the sessions, designated as prescribed by other statutes. If the justices of the sessions, or either of them, be absent at a term of the court of oyer and terminer, or the office of those justices or either of them be vacant, the county judge may supply the

vacancy or deficiency, for the term, by designating the requisite number to form the court, from the justices of the peace of the county.

The first part of this section is taken from the section of the constitution, which provides that any one of the judges of the supreme court may preside in courts of oyer and termimer in any county. Const. art. 6, sec. 6. That part of it which relates to the county judge and two justices of the sessions, is substantially the same as the provision of the judiciary act. Laws of 1847, p. 331, sec. 40.

§ 29. In the city and county of New-York, the court of oyer and terminer must be held by a judge of the the supreme court as the presiding judge, together with two of the aldermen of the city of New-York, designated as the common council may by ordinance prescribe.

By the existing statutes, as they have been construed by the court of errors, the court of oyer and terminer in the city and county of New-York may be held by one or more of the judges of the supreme court, or by either of the three judges of the court of common pleas of that city and county, together with the mayor, recorder and aldermen of that city, or with any two of them. 2 R. S., 3d ed., 270, sec. 34, subd. 1; The People v. White, 24 Wend. 543–545. Upon this provision, a very embarrassing question arose in the case just cited. One of the judges of the court of common pleas had sat conjointly with a circuit judge and with two of the aldermen, and upon this state of facts, the chancellor expressed his opinion that the court was illegally constituted, and voted for the reversal of a judgment of conviction in a capital case. "The effect of this last provision," says, he, was to authorise one or more of the justices of the supreme court, or one or more of the circuit judges, to sit in the court of oyer and terminer, with the mayor, recorder and aldermen, or any two of them; but excluding from the court when thus organized, the first judge [CRIM. CODE.]

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