¶1In this case the prisoners were convicted by police Justices Dowling and Bixby, sitting as judges of the special sessions, of an assault and battery upon a policeman, and were sentenced to the penitentiary on the 29th day of January, to terms of six months each.
¶2They are now brought before me on habeas corpus, and their discharge demanded upon two grounds.
¶3First. That the prisoners, under section eighteen, article six of the state constitution, had a right to be tried by a jury; that they were illegally debarred of that right, although they demanded so to be tried, consequently their conviction and sentence by the police magistrates are void.
¶4Second. That by the act in regard to the special sessions, passed 1865, the police justices (Dowling of the second *463and Kelly of the sixth judicial district,) who tried the prisoners were, by the very terms of the act enabling them to hold said court of special sessions, debarred from doing so, because their terms of office having expired on the last day of December, 1869, they ceased to be tire judges of said court of special sessions after the 1st of January, 1870, and that other police justices—the justices elected for said districts—could not lawfully hold said court.
¶5As to the first ground urged, the court of special sessions is a court of limited jurisdiction, is an inferior tribunal, has no jurisdiction but what is given by statute, its record or minutes must show affirmatively that it has jurisdiction, and no presumption will be indulged in favor or support of'such jurisdiction—herein differing from a superior court of common law powers, whose jurisdiction is intended until the contrary appears. In this case, before the court of special sessions could acquire or assume jurisdiction, and try the prisoners, and for the purpose of conferring such jurisdiction, it must appear positively that the right of trial by jury was expressly waived by the prisoners, and that they preferred and demanded to be tried by the court of special sessions, and this not appearing in the papers certified to' me, by the clerk of the court, the whole proceedings, in consequence thereof, are null and void. I have taken the trouble to examine all the minutes and proceed-, ings had before the committing magistrate, also all the proceedings had before the special sessions, taken by a stenographer at the trial, and cannot find anything contained therein tending in the slightest degree to show that the prisoners in any sense waived their constitutional right to be tried by a jury of their country ; nor can the defect in the trial remedied by the clerk of the court of special sessions inserting in the minutes, after the trial, the words u that after having been duly elected to be tried by said court.” As I have said before, to enable the court to acquire jurisdiction, it must appear affirmatively, in the pro*464ceedings had before trial, that the prisoners expressly-waived their right to a jury. It will not do to ask the prisoner if he elects to be tried by the court of special sessions, because he may think, and reasonably think so, that that court exercises the right of trial by jury, and thereby be misled, but the question must be clearly put to him if he waives a trial by juiy; and, after answering “yes” or “no,” that fact must appear clearly and affimatively.
¶6But, even if the papers before me had shown (which they do not) that the question had been put to said prisoners as to whether they had waived a jury or not, then the court of special sessions, not being a court of record, the prisoners had a right to traverse such a return and show its falsity.
¶7This is the doctrine held by Chief Justice Bronson, in the case in (5 Hill, 164.) In that case that most learned judge said : “ But the officer may inquire whether in truth there is any process of commitment, and whether it is valid on its face. * … And he may also inquire whether the magistrate had jurisdiction, and this, too, notwithstanding the commitment recites the necessary facts to give jurisdiction.” Again, in same case, he says: “No court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends.” Precisely this case. Here the defendants allege that the clerk of the committing magistrate made a false return in stating that the prisoners elected to be tried by the special sessions instead of by a jury, and in support of the fact that a false return was made they produced three affidavits, stating positively that they demanded a trial by jury, and this fact is not denied. Under these circumstances, it is impossible to sustain these convictions. (8 How., 428; 3 Hill, 666, note p., 39; 2 Park. Cr. R., 650; 5 Abb., 281; 15 How., 210 ; 26 Barb., 28.)
¶8As to the second ground urged why I should set aside *465these sentences, after a hasty glance at the act of 1865, I can readily conceive how the point might be well taken, but as the first ground is sufficient for the release of the prisoners, I pass for the present its consideration.
¶9The crime with which these men were charged was so trifling in itself that it seemed to me not to merit such severe punishment.
¶10The defendants were master blacksmiths and horse-shoers, doing business in Westchester county, and had at all times borne a good character. They were under the influence of liquor at the time of the alleged occurrence, and if they did assault the officer, of which there is not a syllable of proof, the assault did not result in any injury, the punishment inflicted was entirely too severe; a few days in the city prison would have been quite adequate; the six months of hard labor in the penitentiary meted out to them should have been ■ reserved for other and greater criminals.