People v. Carnrick

Learned, P. J. The questions as to jurisdiction are disposed of in People v. Wilber, 15 N. Y. Supp. 435, (argued at this term.) The defendant insists that there was an abuse of discretion in the refusal to adjourn on account of the absence of a witness. We think that the affidavit made by defendant for the purpose of obtaining such. adjournment does not show so strong a case that we can hold that there was an abuse of discretion upon a matter which 438 necessarily rests largely on the good sense of the trial court. The defendant-also insists that when arrested on the 28th of August he was not in a condition to plead, on account of intoxication, and that he did not realize that lie was waiving any rights under sections 57, 58, Code Crim. Proc. On the contrary, the minutes returned by the recorder show that the defendant was-infofmed of those rights, and waived them; and the recorder makes a special statement in his return that the defendant was informed of those rights, and that his intoxication, if any, was not of such a degree as to incapacitate him from comprehending the statements made to him by the court. It is, of course, true that one may be in such a mental condition, by reason of intoxication, as to be incapable of making the request provided for by section 58, but, unless there is very strong evidence to impeach the correctness of the recorder’s return, we should accept it as correct. Here there is only the defendant’s statement and the affidavit of the counsel that the recorder said defendant was very drunk when brought before him, and that after the arrest defendant seemed to his counsel to be in a dazed condition. No proceedings were taken under section 758, Code Grim. Proc., to compel an amended return. The evidence of the assault was abundant, and was not contradicted. No defense was made by the defendant upon the trial. The judgment of the sessions is affirmed. All concur.