The petitioner was indicted for the crime of an assault with intent to commit murder.
The defendant entered a plea of not guilty. A regular trial was had, and the jury found the defendant “ guilty of an assault with a deаdly weapon with an intent to do bodily harm.”
At the time fixed for sentence the defendant moved an arrest of judgment upon the ground that the indictment did not “ contain a statement of the acts constituting thе offense of an assault with a deadly weapon,” etc. The motion was overruled. The defеndant’s counsel then gave notice of a motion for a new trial, and a day, two days later, was set for hearing the motion.
The minutes of the Court of that day contain the following entries: “At the cоming in of Court, the Court of its own motion orders an arrest of judgment sustaining the motion made by defendant on Saturday, the seventeenth. The Court of its own motion vacates the order overruling motion in arrest of judgment. The District Attorney interposes an objection to the judgment of the Court being set aside or disturbеd as entered on the seventeenth instant. Objection overruled by the Court, to which ruling the District Attorney еxcepts. The District Attorney asks the Court to remand the defendant Hartman to the custody of the Shеriff, to await the action of the next Grand Jury, and pending the above motion, counsel for defеndant moves to withdraw the original motion for an arrest of judgment, to which the District Attorney objects, оn the ground that a motion not yet decided is pending before the Court. The Court sustains the objection and orders the defendant to be remanded to the custody of the Sheriff", to await the actiоn of the next Grand Jury upon a charge of an assault to com
Undеr the latter order, of the Court the petitioner is detained by the Sheriff, from whose custody he now seeks to be discharged.
I am not called upon in this proceeding to consider the proрriety of the order arresting the judgment, nor whether it should be construed as an independent order of the Court upon its own motion, or as an order following the previous motion of the defendant, and correcting a supposed error in the former ruling. In either case the power of the Cоurt to make the order cannot be questioned. A Court may of its own motion, or upon the apрlication of a party interested, during the continuance of the term, modify or set aside an erroneous order; and by section four hundred and forty-three of the Criminal Practice Act, it is provided that the Court may, upon its own view of fatal defects in the indictment, arrest the judgment without motion. Any error in this respect could be reviewed in a proper case upon appeal, but сannot be questioned upon habeas corpus.
The effect of the order is to plaсe the defendant, as nearly as other and controlling rules of law will permit, in the same situation in which he was before the indictment was found. (Crim. Pr. Act, Sec. 445.) Upon its entry he must be discharged, unless he is detained in custody by virtue of some other legal process or order, which it is in the power of the Court tо make.
By section four hundred and forty-six of the Act, it is provided that, “if from the evidence of the trial thеre is reason to believe the defendánt guilty, and a new indictment can be framed, upon which he mаy be convicted, the Court may order him to be recommitted to the officers of the proрer county, or admitted to bail anew to answer the new indictment. If the evidence shows him guilty of another offense,
I presume the County Court acted under the authority of this section in remanding the prisoner to custody “ to await the action of the next Grand Jury uрon a charge of an assault to commit murder.”
There can be no doubt that if the petitionеr has been tried for the crime of an assault with intent to commit murder, under a sufficient indictment, and by a jury duly impaneled, sworn, and charged with the case, and nothing has been done upon his part which amounts to a voluntary waiver of his rights, these proceedings would be a complete defense аs against any future indictment for the same offense. (People v. Webb,
But these are questions which cannot be considered in this proceeding. The order undеr which the petitioner is held is regular upon its face, and one which the Court had power to make. I cannot extend the inquiry beyond this. If the order was erroneously granted, it was not therefore void. The remedy for error is by appeal. (Ex Parte McCullough,
The petitioner is remanded.