294 N.Y. 172 | NY | 1945
The appellant was served with a subpoena commanding him to appear on June 30, 1942, before the Grand Jury of the County of Queens, empanelled for the September 1940 Term of the County Court, "as a witness in a criminal action prosecuted by the People of the State of New York against `John Doe' and `Richard Roe'". Upon his appearance before *175
the Grand Jury at the time and place specified in the subpoena he declined to be sworn and to testify upon the ground that the "September 1940 Term of the Queens County Court was not properly continued after the month of March, 1941, and that by virtue thereof your Grand Jury was not legally or duly constituted and was without power to administer a legal oath or to confer upon me the immunity to which I would otherwise be entitled under the law by reason of any testimony which I might give." An application was thereupon made to the court by the foreman of the Grand Jury for an order adjudging the appellant guilty of contempt of court pursuant to the provisions of section
The Grand Jury for the September 1940 Term of the County Court of Queens County was empanelled on September 9, 1940, at the regular September 1940 Term of the court, established pursuant to an order made by the judges of that court. At that time an assistant Attorney-General specially appointed for that purpose was conducting an investigation in Kings County of possible criminal acts in connection with paving contracts made by the City of New York. In the course of the investigation it became apparent that he might find it necessary to invoke action by a grand jury in Queens County, and accordingly an assistant commenced to present evidence to the 1940 Grand Jury, summoned for the regular September 1940 Term of the County Court, which had theretofore considered matters presented by the District Attorney of the County not connected with the investigation of paving contracts. The problem presented upon this appeal is whether the September 1940 Term still continued *176 and the Grand Jury empanelled for that term still functioned as an arm of the court in June and in November, 1942.
In the English common-law courts, terms were "instituted" or were "gradually formed from the canonical constitutions of the church". It is said that in early times "the church interposed and exempted certain holy seasons from being profaned by the tumult of forensic litigations". Later, when the State alone exercised authority in common-law courts, "the commencement and duration of our law terms were appointed with an eye to those canonical prohibitions". (3 Blackstone's Com., ch. XVIII, 275, 276.) This court, speaking through Commissioners of Appeals, has said that in common-law courts as distinguished from courts of equity, "strict judicial business could only be transacted at these terms, though, after a time, many incidental matters were transacted out of court. (3 Blackstone's Com., 275, 279; Spelman's Origin of Terms, passim.) The terms of court, thus, have a purely historical character, and there is no reason, in the nature of judicial business, why they should exist, nor why such business should be confined to them." (Brown v. Snell etal.,
Under the Constitution and statutes of New York, and generally throughout the United States, the general rule still is that "strict judicial business" should be confined to stated terms of the courts. "It is necessary that the times and places of holding courts be fixed in advance that jurors can be drawn therefor, and that notices can be given and the necessary steps taken to obtain jurisdiction of the parties in civil and criminal actions and proceedings" (Saranac Land Timber Co. v. Roberts,
The Judiciary Law, section
The Judiciary Law, section
Though we have said above that the statutory method which the Legislature has directed should ordinarily be used "in continuing or adjourning" a term, yet literally the statute applies only to an "adjournment" of a term of a court of record to a future day. In Matter of Reynolds v. Cropsey (
Here on the contrary there has been no "suspension" of the activities of the court beyond such brief periods as are customary and convenient in the conduct of judicial business by the court and the grand jury. The investigation initiated before the September 1940 Term of the court had not been finished at the end of September, 1940; it had not been finished on February 25, 1941. Regular sessions of the Grand Jury were suspended on that day solely for the purpose of obtaining additional jurors on March 6, 1941, who would continue the investigation, though only upon new evidence which might thereafter be presented.
We said in Matter of Reynolds v. Cropsey (supra, p. 394): "We do not mean to hold that the ending of a term of court is dependent entirely upon a form of words used by a clerk in making his entries." Here it appears beyond possibility of dispute that the court by its direction intended that there should be no cessation or even interruption of the work of the Grand Jury and that the term should be continued from day to day until the investigation was completed and the court had disposed of business which might be brought before it in connection with that investigation, or until the term was ended by further order of the court. Irregularity in the formulation of that direction or of the entry in the clerk's minutes under the circumstances did not dissolve the term.
The order should be affirmed, without costs.
LOUGHRAN, LEWIS, CONWAY, DESMOND, THACHER and DYE, JJ., concur.
Order affirmed. *180