The complaint before the police justice against the defendant was good. The offense was described to be one for “maliciously and unlawfully beating” one Egan by “striking him in the head, body, and face without provocation.” The name given to the offense was without any materiality. After the arrest of defendant he refused to make any plea or answer any questions. He elected to be tried by the court, and asked for an adjournment. This was granted; he, the defendant, being admitted to bail during the trial. A second adjournment was had at defendant’s request, *707and on the 8th of July, 1891, the case was tried. There is presented by the evidence a dispute not as to the assault, but as to a provocation for one, and upon this point I think the justice found clearly according to the evidence. The assault was unprovoked, and severe, and rendered more intolerable to the complainant by a suggestion of an infamous inference which is wholly unsupported by the evidence. The proof offered at folio 55 to the belief of the defendant as to the complainant’s intention was improperly rejected, but the rejected proof was subsequently admitted at folio 57. The payment of $10 for complainant’s lawyer and his own expenses furnishes no reversible error. The justice had hesitated as to a further adjournment, and the defendant agreed to pay $10 for that purpose, which was delivered to the justice, and, presumably, by him paid to the private counsel of the complainant. The judgment as modified by the county judge is therefore affirmed. All concur.
NOTE.
The opinion of County Judge Garretson in People v. Samuel H. Anseliell, filed January 4, 1892, in the court of sessions. Queens county, is as follows: “The appellant was convicted in special session of an assault in the third degree, and sentenced to pay a fine of $25, or to be imprisoned in the county jail for the term of 25 days in default of payment thereof. In the affidavit upon which, the appeal was allowed, three separate grounds of error are alleged as calling for a reversal of the judgment: (1) That opportunity was denied the appellant to apply to a justice of the supreme court or to the county judge for a certificate that it is reasonable that the charge be prosecuted by indictment of the grand jury, under section 57 and 58 of the Code of Criminal Procedure. (2) ‘That upon the trial the people were permitted to offer and introduce illegal and improper evidence, against the exceptions and objections of the defendant; and competent and proper evidence offered by the defendant was excluded against the objection of and exception of the defendant.’ (3) ‘That the conviction was against "the law and the facts, and against the weight of the evidence.’ The return of the justice shows that the warrant was issued on July 1, 1891; that on the following day the defendant was broughc before another justice than the one who issued the warranr, and gave bail to appear from time to time at the court of special sessions until judgment; that on July 10th the defendant appeared before the justice who issued the warrant, and asked by his counsel to be allowed, without pleading, sufficient time to make an application for the certificate mentioned in the first ground of alleged error above referred to. Counsel for the people objected, and insisted that the defendant be required to plead forthwith. The justice reserved his decision until the following day, when he denied the application. ‘The defendant’s counsel thereupon protested against the jurisdiction of the court to ask a plea, and stated that the defendant, without waiving any of his rights, entered a plea of not guilty,’ and the trial proceeded. The return fails to show that the charge was read to the defendant on July 2d or upon the 10th or 11th day of that month by either magistrate. We infer, however, from the language of the defendant’s motion for time to apply for the certificate without pleading, made on the 10th, that the charge was then first read to Mm. At no time does it appear that either magistrate informed the defendant of his rights under sections 57, 58, Code Crim. Proe., above cited. The language of these sections is very explicit, and is intended to confer a substantial right upon a defendant; a right so substantial in its nature that by section 58 it is made the duty of the magistrate to expressly inform the defendant of Ms right thereunder before proceeding with the case. The mode of procedure contemplates the arraignment and reading of the charge, and the communication of tMs information, before the defendant is required to plead. Section 58 says: *708‘When a person is brought before a magistrate, charged with the commission of any of the crimes mentioned in section 56, and asks that his case be presented to the grand jury, the proceedings shall be adjourned for not less than five nor more than ten days,’ to enable the defendant to apply- for the certificate. For aught that the return of the justice shows, no arraignment of the defendant was had until the day when by his counsel he asked for an adjournment for this purpose, and he did not until then become aware of his rights in this regard. We are of the opinion that the magistrate erred in refusing the application; that he should have granted it as of course, without assuming to take it under advisement. It is urged by the counsel for the people that the appellant waived his right to apply for the certificate by electing to be tried in the court of special sessions. This contention, as we have observed, is not sustained by the return. He expressly demanded his right when arraigned for the first time upon the charge, and went to trial by compulsion, and under protest. It is also urged that he had .ample time to make the application after he was first brought into court on July 2d, and before arraignment. There might be some force in this contention if it appeared that he had then been arraigned, the charge read to him, and his rights made known to him, or even if he had then been present with counsel, as it does not. We are unable to consider the second alleged ground of error because of its very general and indefinite form. The affidavit on appeal must state the facts showing the alleged errors in the proceedings or conviction complained of. Code Grim. Proc. § 751. If the appeal is allowed, the magistrate must make a return to all matters stated in the affidavit. Id. § 756. The affidavit and return make up a sort of bill of exceptions, which state only so much' of the proceedings as are necessary to give point to the ‘alleged error’ stated in the affidavit Only the ‘alleged error’ thus set forth in the affidavit can be considered on the appeal. People v. Beatty, 39 Him, 476. In view of our conclusions upon the first ground of alleged error as above set forth, it is unnecessary to consider the third and remaining point presented by the appeal.
The judgment of conviction appealed from must be and is reversed.