David B. Alford for appellant.
Emmet J. Lynch, District Attorney (
D. Vincent Cerrito of counsel), for respondent.
The only certification is a certified copy of the record of conviction, together with other alleged records and minutes of adjournments of proceedings. It also contains a stipulation by counsel. Nowhere does it appear that such stipulation was a part of the record and there seems to be no authority for such stipulation, as the minutes of the trial are the best record of the proceedings had thereon. Section 756 of the Code of Criminal Procedure requires that "The magistrate or court rendering the judgment, must make a return to all matters stated in the affidavit, and must cause the affidavit and return to be filed in the office of the county clerk within ten days after the service of the affidavit of appeal." This is a mandatory requirement by the magistrate or the police justice. He must make or cause to be made the return himself, and he must, under his own signature, certify to the return and cause the same to be filed with the County Clerk. There is not even a substantial compliance with this section and this too, affects upon this appeal, the substantial rights of this defendant. Judgment of conviction reversed, information dismissed and the defendant discharged. Submit order.