110 N.Y.S. 793 | N.Y. App. Div. | 1908
At the January term, 1908, of the Criminal Term, Part 1, of the Supreme Court, the grand jury therein impaneled found two indictments against William E. Montgomery, charging violations of section 600 of the Penal Code in that being an officer of a bank he did knowingly overdraw his account in said bank and thereby
The first question to be considered is whether the order is appeal-able. The Code of Criminal Procedure provides in section 25Ó that “the grand jury must appoint one of their number as clerk, who is to preserve minutes of their proceedings (except of the votes of the individual members on a presentment or indictment) and of the evidence given before them,” but it was not until 1885 that provision was made for the attendance of a stenographer upon the grand jury. By chapter 348 of the laws of that year,
The Code of Criminal Procedure nowhere makes provision for an application to procure the inspection of or a copy of the said min
The indictment is in a criminal action. The motion to set aside the indictment must be made in said action. If it were not for the existence of the criminal action the motion would be of precisely the same nature as that considered in Matter of Jones (181 N. Y. 389), where a motion to quash a presentment of a grand jury was before the court, which said: “ The motion in question was not made in an action either civil or criminal, for none was pending. It was not the commencement of a special proceeding of a civil nature because it was not a prosecution by a party (Code Civ. Pro. §§ 3333, 3334). It was not a proceeding or special proceeding of a criminal nature authorized by the Code of Criminal Procedure (Code Cr. Pro. part 6, titles 1-11, §§ 773-952).”
As there is a criminal action pending, and as this motion is made by the defendant therein in relation thereto, it must be held to be a motion in such action.
There is no constitutional or general right of appeal in- criminal cases. The right to appeal in such cases is purely statutory. The policy of the law is to forbid intermediate appeals, for if such were
Section 515 of the Code of Criminal Procedure provides that “ Writs of error and of certiorari in criminal actions and proceedings and special proceedings of a criminal nature, as they have heretofore existed, are abolished ; and hereafter the only mode of reviewing a judgment or order in a criminal action or proceeding, or special proceeding of a criminal nature, is by appeal.” Section 517 thereof provides that “ An appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment, except that when the judgment is of death the appeal must be taken direct to the Court of Appeals, and, upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment-roll, as prescribed by section four hundred and eighty-five, may be reviewed.”
In People v. Dunn (31 App. Div. 139) this court said: “The only other point made by the defendants is that the act deprives them of an appeal from the decision of the trial court upon their challenges. There is nothing in this point. The right of appeal is not guaranteed by the Constitution. That is a matter entirely within the legislative judgment. Even the general right to an appeal, in the absence of a constitutional provision to the contrary, is but a privilege which the Legislature may take away.” This language was expressly approved on appeal (157 N. Y. 528).
In People v. Martin, No. 1 (99 App. Div. 372) this court dismissed an appeal from an order denying the defendants’ motion to dismiss an indictment for lack of prosecution, saying: “ It is the opinion of the court that the order is not appealable. * * Appeals in criminal cases may be taken .only where expressly allowed by statute, and the. only appeal allowed by the Code of Criminal Procedure is from a judgment of conviction, on which appeal ah intermediate order or proceeding forming part of the judgment roll may be reviewed.”
In People v. Carroll (105 App. Div. 147) the Appellate Division of the third department dismissed an appeal from an order denying a motion for the appointment of a referee to take a deposition to be
In People v. Dundon (113 App. Div. 369) the Appellate Division of the third department dismissed an appeal by the People from an order dismissing the indictment. It was stipulated that the respondents waived any question as to the right of the People to appeal, but the court said : “Consent cannot give jurisdiction to an appellate court. * * * We think the order in question is erroneous, but for the reasons above stated we are not at liberty to entertain the appeal therefrom.”
We have recently had occasion to consider this matter in People v. Markham (114 App. Div. 387). We dismissed an appeal, stating : “ The right to appeal being, therefore, a mere statutory one, and no appeal having been provided for in cases similar to the one at bar, it follows that the motion to dismiss the appeal must be granted.” And in our opinion handed down at the April term, 1908, of this court (Hebberd v. Loeb, 125 App. Div. 579, citing People v. Trezza, 128 N. Y. 529; People v. Mayhew, 151 id. 607; People v. Priori, 163 id. 99), we dismissed an appeal from an order denying a motion for a new trial made after judgment and affirmance thereof upon appeal as not appealable.
In Matter of Jones (181 N. Y. 389), which was an appeal from an order denying a motion to set aside and quash a presentment of a grand jury, the Court of Appeals said : “ The right of appeal in civil actions and proceedings is governed by sections 190 and 191 of the Code of Civil Procedure, and in criminal actions and proceedings by sections 515 to 533 of the Code of Criminal Procedure. These provisions are exclusive, and unless they authorize an appeal to this court we have no jurisdiction. * * * As there is no inherent right of appeal, and none is allowed by statute from such an order as was made by the Appellate Division, we are compelled to dismiss the appeal.”
In People v. Glen (173 N. Y. 395) the court said: “ That the Legislature has the undoubted right to regulate mere matters of procedure in all actions and proceedings, both criminal and civil, is
We cited this language in People ex rel. Jerome v. Court of General Sessions (112 App. Div. 424; affd., 185 N. Y. 504), where we granted an absolute writ of prohibition prohibiting the Court of General Sessions of the Peace from granting a new trial upon the ground that the motion therefor had not been made within the time and for the reasons prescribed by the Code of Criminal Procedure, and tliat as an appeal would not lie prohibition was proper.
Conversely, in People ex rel. Hummel v. Trial Term (184 N. Y. 30) the Court of Appeals affirmed an order of this court denying the relator’s motion for an absolute writ of prohibition to restrain the prosecution of certain criminal proceedings against him, upon the ground that he had been compelled to testify against himself before the grand jury, the court holding that as the denial of that motion was appealable as an intermediate order upon the appeal from the judgment, the writ would not lie.
The appellant, to sustain his contention that the order is appeal-able, relies upon certain cases wherein an appeal has been entertained from an order denying a motion for a change of place of trial in a criminal action. Section 346 of the Code of Criminal Procedure provides that: “ The application for the order of removal must be made to the Supreme Court, at a Special Term in the district, upon notice of at least ten days to the district attorney of the county where the indictment is pending, witli a copy of the affidavits or other papers on which the application is founded.” The leading case is People v. McLaughlin, No. 1 (2 App. Div. 408). In that case Eumsey, J., said: “ The proceeding, therefore, to change the place of trial was not a proceeding in the criminal action, but it was a matter outside of that action brought to obtain relief which was no necessary part of the criminal action itself. * * * The proceeding was one in the Supreme Court. It was a proceeding for the enforcement of what was claimed to be a right, and it was not a civil
Be that as it may the statute expressly provides that motions for change of the place of trial shall be made at Special Term of the Supreme Court. There is no such provision in regard to the motion for a copy of the minutes of the grand jury and so the decisions cited upon motions for change of venue are not controlling here. The only provision of law upon that subject is contained in the act of 1885, quoted supra, controlling the stenographer: “He shall not permit any other person to take a-copy of the same * * * except upon the written order of the court duly made after hearing the said district attorney.” ,
It seems to us that such an application as that at bar, addressed to the court in charge of the grand jury, is an application to the discretion of that court, and that from its exercise of that discretion
This decision is limited to the facts presented. That is an appeal from an order denying a motion made by a defendant under indictment for a copy of the minutes of the grand jury which indicted him.
As the provisions of law in respect to inspection of the minutes of tlie grand jury are general, we do not now hold that under no circumstances would an order of the trial court in relation thereto be unappealable, leaving such matters to be disposed of when raised.
We might well stop here, but it has been strongly urged upon us, both by the learned district attorney and by the learned counsel for the appellant, that these motions are becoming more and more frequent, aud that there is considerable diversity in ruling thereon in the different courts having charge of grand juries. The position of the appellant goes to the extent of claiming that an inspection of the minutes is an absolute right of the defendant, and that it should be granted in all cases upon application. The learned district attorney admits that the court has power to permit such inspection, but urges that the limits of its discretion should be fixed, and that a rule adopted by such courts that the mere fact that a defendant has not had a preliminary examination before a magistrate before indictment is in. and of itself sufficient ground for granting the application is unsound.
The grand jury, as- an institution in the administration of the criminal law, is of ancient origin and was received by us with the rest of the common law of England. Secrecy in its proceedings has always been regarded as essential. Said Blackstone in his Commentaries written in 1758 : “And anciently it was held that if one of the grand jury disclosed to any person indicted the evidence that appeared against him, he was thereby made accessory to the offense, if felony, and in treason a principal, and at this day it is agreed that he is guilty of a high misprision and liable to be fined and imprisoned.” (4 Bl. Comm. 126.)
There was no statutory provision for the keeping of a written record of the proceedings before the grand jury in this State until the passage of the Revised Statutes in 1828, where it was
While motions were made prior to the passage of the act of 1885, providing for the stenographer to the grand jury, supra, for a copy of the minutes, I have found no ease wdiere the motion was granted. People v. Naughton (88 How. Pr. 430), frequently cited as a leading case in support of the motion, was decided in 1870 in the Court of Oyer and Terminer, sitting iu Kings county. In that case there had been no preliminary examination before a magistrate. Mr. Justice Pratt denied a motion for a copy of the minutes, saying: “ That the motion papers do not state facts sufficient to warrant such an order. They do not state wherein any of the proceedings of the grand jury were irregular, so the court can judge whether it is a matter competent for the defendant at this time to challenge or investigate, or wherein an inspection is essential to protect any right of the defendant, or wherein the non-production of the minutes will work an injustice, or that he cannot more properly derive all the information he seeks from other sources. * * * It may also be said that it does not appear from said motion papers, but that all that appears on said minutes may be matters required by law to be kept secret. * * * The court cannot permit the said minutes to be used to disclose how any juror voted, or what was said by any juror during their deliberations, or to impeach a regular finding of a grand jury. It is only within certain restrictions that any inspection of the minutes can be allowed.”
In Eighmy v. People (79 N. Y. 546), decided in 1880, Miller, J., said : “ The refusal of the court to compel the public prosecutor to furnish to the prisoner’s counsel the evidence before the grand jury was a matter resting in the discretion of the court, and is not the subject of review upon this writ of error.”
In People v. Bellows (1 How. Pr. [N. S.] 149), decided in 1884, Mr. Justice Brady, sitting iu the Court of Oyer and Terminer, citing Eighmy v. People (supra), said: “ The necessity for a copy of the minutes in this case is not, I think, sufficiently shown by the affidavit of counsel.”
In People v. Jaehne (4 N. Y. Cr. Rep. 161), decided in 1886, Smyth, Recorder, in denying a motion where no examination had been had before a magistrate, said : “ Assuming that the court has the power to make such an order under the law governing the practice in criminal courts, at the present time a question which is not entirely free from doubt, it is sufficient to say that this branch of the motion must be denied. * * * ¡No case has been cited by the defendant’s counsel where it has been held that the defendant, as a matter of right, is entitled to be furnished with the evidence taken by a grand jury in support of an indictment, or which, except for some special reason, such as to enable him to move to 'quash or set aside indictment, as it is now termed, he will be permitted to inspect the minutes. Many reasons could be urged against the propriety of giving him such permission.”
Since the passage of the act of 1885 such motions have been made and granted with more and more frequency, and a practice seems now to have grown up in the Court of General Sessions to grant such motions when there has been no preliminary examination, which practice seems to be based upon a decision made in that court in 1899 in People v. Molineux (27 Misc. Rep. 60). That case cites People v. Naughton (supra), in which, although there had been no preliminary examination, the motion was denied.
This question was carefully considered in the Supreme Court, Criminal Part, by Mr. Justice Kenefiok, in People v. Steinhardt
Examination of the minutes of the grand jury cannot be had for the purpose of putting the People’s testimony in the hands' of the defendant, nor for the purpose of assisting him in preparation for trial; nor can it be had as a matter of right, for if so, such inspection must be granted to every defendant upon the mere asking. The sole purpose for which the inspection can be granted is to enable him to make a motion to set aside the indictment for the reasons specified in section 813 of the Code of Criminal Procedure, and, as now settled by the Court of Appeals in People v. Glen (173 N. Y. 395) and People v. Sexton (187 id. 495) — both of which cases being on appeal from final judgment — where his constitutional rights have been invaded. As said in the Sexton case: “ Whenever it clearly appears, therefore, that the legal evidence received by a grand jury is insufficient to support an indictment, or that illegal evidence is the sole basis for an indictment, the person indicted has a constitutional right to make a motion to dismiss, notwithstanding the provisions of the Code to the contrary. The right to make a motion upon these substantial grounds, and to have it decided in the first instance, necessarily implies the right to have a review of an adverse decision, at least in the absence of any statutory limitation, and so we will treat this as one of the questions that may be reviewed by this court upon appeal from a judgment of convictiomin a capital case.”
As we do not think the order appealable, we do not pass upon the facts presented to the court in the first instance. In the exercise of its discretion the motion was denied. We have no power under the provisions governing appeals to review that discretion.
The appeal here taken should be dismissed.
Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.
Appeal dismissed.
Amd. by Laws of 1886, chap. 131; Laws of 1894, chap. 82; Laws of 1895, chaps. 177, 661; Laws of 1897, chap. 25; Laws of 1899, chaps. 45, 516; Laws of 1900, chap. 329; Laws of 1904, chap. 354, and Laws of 1907, chaps. 222, 587.—. [Rep.
Section 5 of the act has been amended by Laws of 1899, chap. 516, and Laws of 1907, chap. 587.— [Rep.
People v. McLaughlin, No. 2.—[Rep.