184 A.D. 829 | N.Y. App. Div. | 1918
Lead Opinion
This court recently granted an absolute writ of prohibition restraining the holding of an Extraordinary Term of the Supreme Court in the county of New York (Matter of McIntyre v. Sawyer, 179 App. Div. 535). While the facts in that case are not identical with those of the case at bar, they are so strikingly similar that I am unable to distinguish them in principle. In the McIntyre case the Governor’s order, as in this case, directed notice to be published twice in each of two daily newspapers named therein. It was published only twice in one, while the notice of an Extraordinary Term to be held at the same time by another justice, whose designation had been revoked, was published twice in the other newspaper. In the case at bar the order required that the notice should be published once in each week for two successive weeks in two newspapers designated therein. The notice was so published in one of the newspapers, and was published twice in one week in the other. The order of the Governor was disregarded in both cases. In both cases the formal and deliberate action of the Governor and his secretary “ were performed in the exercise of the highest executive prerogative, with strictest regard for statutory provisions.” Yet we held in the McIntyre case that the error of the printer, or of some one other than an official, nullified the Governor’s order and “ that neither the justice designated nor any other justice has jurisdiction to proceed with the trial of said, action.” If the manner of giving the notice is of no importance and the Governor’s order can be disregarded so long as the order itself conforms to the statute, I admit that the defective publication in the instant case is of no importance and the objection merely technical. But it also follows that the objection in the McIntyre case was the “ merest technicality.” Nor does the fact that in the McIntyre case the matter was called to the attention of the court before any proceedings were had, and that in the case at bar it was not called to our
In my opinion, the decision was right and must be followed. The requirement that “ the sittings of every court within this State shall be public, and every citizen may freely attend the same ” (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 4), does not merely mean that the doors are to be opened to all when the court is in session, but also that the general public shall be advised, of the time and place of the holding of the terms of the courts. The Legislature has provided how the time and place at which the regular Trial and Special Terms of the Supreme Court shall be held (Judiciary Law, §§ 84, 151), and for publication thereof (Executive Law [Consol. Laws, chap. 18; Laws of 1909, chap. 23], §§ 33, 82); in this manner insuring publicity. The Legislature having taken care that due publication should be made each year of the time and place of holding regular terms, although as a matter of fact these terms are held with consistent regularity at the corresponding time and the same place year after year, it certainly intended that an extraordinary term of the court should have some publicity given to the time and place at which it is to be held. The Governor is given power to appoint one or more extraordinary Special or Trial Terms of the Supreme Court, designating the time and place of holding the same and naming the justice who shall hold or preside at such term. It
The State Constitution prescribes that “ no person shall * * * be deprived of life, liberty or property without due process of law.” (Art. 1, § 6.) “ That is ‘ due process of law ’ within the meaning of these words, which affords to every citizen the equal protection of the laws, and in case of accusation of crime, the right of trial by jury before one of its duly constituted tribunals having jurisdiction of the crime, under a procedure which the State prescribes.” (Matter of Buchanan, 146 N. Y. 264, 271. See, also, People v. Johnson, 185 id. 219, 228.) Therefore, when a person is brought before a court not duly constituted, he has the right to demand that he shall not be tried by such a court. The Legislature having prescribed how an Extraordinary Term of the court may be constituted, we should give effect to the statute and not dismiss its requirements as unnecessary of observance. It is our duty to enforce the statute as we find it, and not substitute our judgment for that of the Legislature as to what is or is not essential in the way of notice. What notice is essential is to be determined by the Governor, and his ' decision is not subject to our review. (People ex rel. Saranac Land & Timber Co. v. Supreme Court, 220 N. Y. 487.) We,
The relator also asks that the writ of prohibition issue on the ground that no grand jury has jurisdiction to return an indictment, nor has any court jurisdiction to entertain a criminal action, against the relator on the matters therein set forth. The indictment against the relator set forth facts tending to show violatipns of section 546 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap." 22], as amd. by Laws of 1910, chap. 429). Upon the back of the indictments reference is made to section 751 of the Penal Law, as well as section 546 of the Election Law, the inference being that by violating section 546 of the Election Law, section 751 of the Penal Law became operative. Section 751 of the Penal Law is entitled: “Misdemeanors at, or in connection with, political caucuses, primary elections, enrollment in political parties, committees, and conventions.” Not one of its thirteen subdivisions refers to any act done or committed with reference to the general election. It is not open to discussion that section 751 refers only to primary elections and conventions, or activities with respect to a nomination to office. (People v. Willett, 213 N. Y. 368. See exception in Penal Law, § 750.)
It appears from the facts alleged in the indictment that the relator was charged with acts violative of the “ Corrupt Practices Act ” (Election Law, art. 16, as renum. from art. 20 by Laws of 1913, chap. 800). For violations of that
I have referred thus extensively to the provisions of the act to show that a full and complete remedy is provided by the terms of the act for any and every violation of the act by a civil proceeding. It is well settled that where a statute creates a new offense and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced, and in the manner prescribed by the statute. It is exclusive of all other remedies. Chief Judge Church, speaking for the court in People v. Hislop (77 N. Y. 331), said (at p. 333): “ When a statute creates a new offence, and makes that unlawful which was lawful before, and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced. The offence in such case is not indictable (People v. Stevens, 13 Wend. 341; People v. Brown, 16 id. 561; Rex v. Wright, 1 Burr. 543).” “ The intent of the Legislature to elevate an act to the importance of a crime cannot be imputed by loose inferences and doubtful implications, but must be made to appear with reasonable certainty. We may guess that the Legislature intended to make all prohibited acts criminal offences, but it is impossible to so affirm with any degree of certainty, and the fact that they did not so declare is indicative that they did not so intend” (p. 335).
The Corrupt Practices Act provides for a civil proceeding in which the person proceeded against has an opportunity to confront and cross-examine witnesses, call witnesses in his own behalf, explain the seeming violation, and, if not willfully committed, an opportunity is afforded to correct the error. It was the intention of the Legislature, clearly expressed, that a full opportunity of exculpation should be given in a civil proceeding. It is proper to state that upon the second point discussed the views expressed are personal. The majority of the court recognize the serious nature of the claim urged by the relator, but decline to pass upon it at this time for the reasons stated by the presiding justice.
Laughlin and Smith, JJ., concurred on the first ground; Clarke, P. J., and Shearn, J., dissented.
Dissenting Opinion
Relator asks for an absolute writ of prohibition to restrain an Extraordinary Trial Term of the Supreme Court and the justice holding ¿nd presiding thereat, from proceeding with the trial of certain indictments charging him, with other defendants, with a violation of section 546 of the Election Law and section 751 of the Penal Law, found against him at the said Extraordinary Term and now pending before it. He claims that the direction of the Governor concerning the publication of the order appointing the term was not complied with and that, therefore, the Extraordinary Term is an illegally constituted court and, in short, no court, and that, therefore, the grand jury which found the indictments was without jurisdiction and the Extraordinary Term is without jurisdiction to try them.
On July 31, 1917, the Governor, pursuant to the authority vested in him by section 153 of the Judiciary Law, which provides, “ The Governor may, when, in his opinion the public interest so requires, appoint one or more Extraordinary Special or Trial Terms of the Supreme Court. He must designate the time and place of holding the same, and name the justice who shall hold or preside at such term, and he must give notice of the appointment in such manner as, in his judgment, the public interest requires,” appointed an Extraordinary Trial Term of the Supreme Court to be held at the county court house in the city of New York on the 27th day of August, 1917, and designated the Hon. John W. Goff to hold such Extraordinary Trial Term and directed that notice of such appointment be given by publication of the order once in each week for two successive weeks in the Morning Telegraph and the Sun, newspapers published in the city of New York.
On the 2d day of August, 1917, a copy of the order was published in the Morning Telegraph and the New York Sun. On the third day of August a copy of the order was published
On the eighteenth of March a panel for a new grand jury was summoned and this grand jury on the 3d of May, 1918, returned three indictments against the relator herein. Pleading to these indictments was deferred until the 22d of May, 1918. On the twenty-first an alternative writ of prohibition was issued. The petition challenged the jurisdiction of the Extraordinary Trial Term and its grand jury upon two grounds: First. That the Extraordinary Trial Term was never properly convened to try the relator upon the pretended indictments found against him. Second. That the publication was not in compliance with the order of the Governor and the failure so to comply was fatal.
It is evident that there was not a strict compliance with the order of the Governor. A publication in one of the two papers designated on two successive days in one week was not a publication once in each week for two successive weeks.
The secretary to the Governor transmitted a copy of the Governor’s order to the Morning Telegraph in a letter which stated: “ I am transmitting to you herewith a copy of the Governor’s order appointing an Extraordinary Trial Term of the Supreme Court. You will note that this order should be published in two issues of your paper.” The question then is whether when the Governor has issued a lawful and correct order prescribing the method of its publication, and his secretary has transmitted a copy of said order to the newspapers prescribed by him, and the order is published twice in said papers, but one of them inadvertently publishes it upon two successive days instead of once in each week for two successive weeks, the action of the Governor has been thus nullified, and the term appointed by him, in accordance with law, although held by a justice of the Supreme Court duly designated at the place and time appointed, all
There is no difficulty in distinguishing that case from the one at bar. There the Governor had issued two apparently conflicting orders and his direction for publication in two newspapers had not been complied with as to either of his orders. The matter was called to the attention of this court before any proceedings had, and, in view of the exceedingly long and technical trial in contemplation, it was deemed wise and in the public interests to arrest the matter in limine in order that a new start might be made and embarrassing questions avoided. The result proved the wisdom of our determination. That case, however, was not decisive, and was not intended to be, of the question here raised. The point presented, as I view it, is the merest technicality. If sustained it would subject the formal and deliberate action of the Governor and his secretary, performed in the exercise of the highest executive prerogative, with the strictest regard for statutory provisions, to nullification by a printer’s error. The purpose of public notice is to insure the honest administration of justice and to maintain the confidence of the people in the integrity of the judiciary, in conformity with the law requiring the courts to be open to the public. In this case notice of the term was published twice in two daily newspapers published in the city of New York in August, 1917. An order for the drawing and summoning of a grand jury was duly made on August sixth in accordance with section 226 of the Code of Criminal Procedure which provides: “A grand jury may also be drawn: * * * 4. For an Extraordinary Term of the Supreme Court or a term thereof for which a trial jury is not required to .be drawn, upon the order of the justice named to hold or preside at the same.”
This order was entered upon the minutes and a copy thereof
The relator, and the other defendants indicted with him, had full knowledge of the existence of the Extraordinary Term and its grand jury. On December 17, 1917, the defendant Newcomb made a statement to the district attorney concerning his activities in relation to the election. On December 18, 1917, the defendant Sulzer and on December 20, 1917, the relator with his counsel did the same. On January ninth and March first the defendant Healey also made a statement to the district attorney in relation to the matter under investigation. So that long before the impaneling of the grand jury all four defendants were aware of the fact that their conduct in connection with said election was the subject of investigation and inquiry. At the time the grand jury was being selected touching their qualifications, Mr. Kresel, counsel for relator Childs was presented in court accompanied by a stenographer who took minutes of the proceedings on the said examination. Each of the defendants signed a waiver of immunity and all of them appeared before the grand jury. After the indictments were found in May, 1918, the relator was arraigned and held to bail, but before the date set for pleading he sued out the alternative writ of prohibition. Before that time numerous other trials had been had before the Extraordinary Term. As appears from this record, not only had there been preliminary publications of the appointment of the term, but very considerable notoriety-regarding its proceedings. Personal notice had been brought home to the relator and the other defendants indicted with
Under such circumstances it is evident that there is no substance in the objection but that it is the merest technicality. In my opinion the time has long since passed in this State for formal court proceedings to be nullified by such matters. The attitude of the courts of this State in later years is shown by the following cases:
In People ex rel. Weich v. Warden of City Prison (117 App. Div. 154; affd., on opinion below, 188 N. Y. 549) where the court changed the place of holding the court from the Criminal Court Building to the County Court House and continued its term beyond the term of another term appointed by the Appellate Division, in affirming an order dismissing a writ of habeas corpus this court said: “ We think the objection entirely without merit. The time has passed in this State when a person indicted for crime, having been tried by a court organized as required by the Constitution, presided over by a judicial officer duly elected to preside, and where all the rights of the accused have been carefully preserved and guarded, may have his conviction set aside upon a technical claim such as that presented.”
In People v. Sullivan (115 N. Y. 185) a trial had commenced on the twelfth of March and had adjourned until the next day, March thirteenth. On the adjourned' day no court was held. On the fourteenth the trial proceeded. After conviction a motion was made in arrest of judgment upon the ground that the court upon the twelfth of March having adjourned to meet on the morning of the thirteenth, and not meeting on that day, it was thereby dissolved and had no right to meet on the day thereafter, and that all proceedings before such court were coram non judice and void for want of jurisdiction. The motion was overruled. Upon appeal to
In People v. Petrea (92 N. Y. 128) the court said: “ The objection to the constitution of the grand jury which found the indictment, lies solely in the fact that they were drawn, under the provisions of a void statute, from the petit jury list, whereas they should have been drawn from a fist of grand jurors, specially selected to serve as such by the supervisors of Albany county. In all other respects the proceedings were regular. * * * We are of opinion that no constitutional right of the defendant was invaded by holding him to answer to the indictment. The grand jury, although not selected in pursuance of a valid law, were selected under color of law and semblance of legal authority. The defendant,- in fact, enjoyed all the protection which he would have had if the jurors had been selected and drawn pursuant to .the general statutes. Nothing could well be more unsubstantial than the alleged right asserted by the defendant under the circumstances of the case,” and sustained the conviction.
In People v. Herrmann (149 N. Y. 190), a murder case, the defendant was tried before Mr. Justice Keogh at a Criminal Term of the Supreme Court held in the county of New York. Mr. Justice Keogh was not a justice of the First Department but had been assigned to hold the term by the Appellate Division thereof. The defendant moved in arrest of judgment upon the ground that “ neither this court nor your honor now has, or ever did have, jurisdiction either of the person of this defendant or of the subject-matter of this indictment, for the reason that the assignment of your honor
In People v. Youngs (151 N. Y. 210), a murder case, defendant was indicted at a term of court held on January 20, 1896, which was appointed by the justices of the Appellate Division in the Third Department on December 3, 1895. The court said: “ The justices were required to make these appointments by article 6, section 2, of the new Constitution and also by section 232 of the Code of Civil Procedure. It is true that by the provisions of the Code they were required to make the appointments before the first day of December, 1895; but this we think was directory, and the fact that they did not make the designations until three days afterwards, does not, we think, affect the validity of the act. * * * The designation of the particular day was, as we have already remarked, directory, and the observance of the date was not essential to the jurisdiction to perform the act. * * * But even if this were otherwise, and it could be said that the designation of the terms of the court was not in strict compliance with the Constitution or the statute, the objection would not, we think, avail the defendant. The court in which the indictment was found was appointed to be held by the body which the Constitution and the statute had designated for that purpose. The grand jury was regularly drawn from the body of the county, summoned and sworn as provided by law. It was at least a de facto jury, selected and organized under the forms of law, and that was sufficient for the protection of all the defendant’s constitutional rights.”
While it may be said that the decisions above referred to, having been made after trial and conviction, only go to the extent of upholding the judgments as made by de facto juries and courts, where no substantial right of the defendant has been invaded, yet they are convincing authorities that even in murder cases the courts of this State are more and more regarding substance and not shadow and pay little attention to unimportant technicalities.
In my opinion when the Governor has fully complied with the provisions of the law governing the appointment of an Extraordinary Trial Term of the Supreme Court, and his due and lawful order has been transmitted to the newspapers designated by him, the provision as to the dates of publication become directory merely, and not mandatory, and a failure to strictly comply therewith does not affect the legality of the constitution of the court nor its jurisdiction. Statutory pro
While some of these cases fall under the de facto rule, the claim having been made for the first time on appeal, in two at least, the point was raised in limine.
In State v. Claude (supra) a motion was made on the trial to quash a venire of jurors. One of the grounds stated was that the term was not called according to law and, therefore, was an illegal term. The motion having been denied, upon appeal the court said: “ This objection is of the most radical character, attacking the jurisdiction and power of the Judge to perform any judicial functions at such a term, and, if sustained, would strike with nullity all his proceedings.” The statute, section 1932 of the Revised Statutes of Louisiana, provided: “ Whenever a special term of the court shall be ordered, the Judge ordering the same shall notify the clerk of the court, and he shall give notice thereof by publication in one or more newspapers published in the parish where the court is to be held, if there be one; and by notice posted on the door of the courthouse, at least thirty days before the commencement of the term.” The clerk caused publication in a newspaper to be made but neglected to post the notice on the court house door. The court said: “ The question is, whether the right of the-Judge to hold the special term, called by him in the exercise of express statutory authority, and after compliance with every duty imposed on him, can be defeated by failure of the clerk to perform a duty in connection therewith imposed bylaw upon him. If so, it would give the clerk the extraordinary power of nullifying the authority vested by the law in the Judge and of preventing the holding of any special term. Such a doctrine cannot receive our assent. * * * We feel fully justified in holding that its omission did not invalidate the call or destroy the jurisdiction at the term, especially as the failure of notice was partial only, and as the complaint
In State v. Shanley (supra) a motion was made at the trial to quash the warrant of the judge appointing the Special Term because the record thereof made by the clerk in vacation did not show that it was posted at the door of the court house as required by statute. (W. Va. Code, chap. 112, § 5.) The Supreme Court of Appeals said: “ Being no part of the warrant, but merely a part of the clerk’s ministerial duty in regard to what he should do after receiving and recording the warrant, his failure to post a copy could not have the slightest effect on the validity of the warrant, or on the power to hold court under it, and, as the court had jurisdiction to hold the term and dispose of defendant’s case, there could be no ground of continuance for want of such jurisdiction.”
The proposition is well stated in the brief of the district attorney as derived from the cases cited as follows:
“ That where the appointing power does everything on its part to be performed, jurisdiction is established; and that the failure of ministerial agents to perform their part is a mere irregularity — which may or may not be conducive to error, according as it has or has not operated to deprive the particular person of a substantial right.”
The second point presented by the relator is that no grand jury has jurisdiction to return an indictment for the matters set forth in these indictments and neither the Extraordinary Trial Term nor any court has jurisdiction to entertain a criminal action against the relator based upon the matters therein set forth, specifically that the penalty provided by section 560 of the Election Law is the exclusive one for any violation of section 546 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd. by Laws of 1910, chap. 429) and that section 751 of the Penal Law has no application. Assuming that there may be matter of substance in this claim it cannot be tested by writ of prohibition.
In People ex rel. Livingston v. Wyatt (186 N. Y. 383) a witness subpoenaed in a John Doe proceeding sued out a writ of prohibition. The court said: “ We are of the opinion that the subpoena issued by the magistrate was void upon
And in that case it held that the relator’s remedy was by habeas corpus and “ if relief were refused in the first instance, there was a right of appeal to the Appellate Division and to the Court of Appeals, so that ultimate if not immediate justice was certain. * * * This remedy was open to the relator and his application for a writ of prohibition was properly denied, because that form of relief can be resorted to only when there is no other.”
The Supreme Court is a court of general jurisdiction. The objections that the facts set forth in the indictment do not constitute a crime can be taken by demurrer, at the trial under the plea of not guilty, and in arrest of judgment. An appeal may be taken to the Appellate Division and to the Court of Appeals.
In People ex rel. Hummel v. Trial Term (184 N. Y. 30) the defendant moved for an order quashing the indictments upon the ground that he had been compelled to testify against himself before the grand jury. This motion was denied and
Therefore, as an adequate remedy is provided by law and the Extraordinary Trial Term of the Supreme Court has jurisdiction both of the person of the relator and to pass upon the sufficiency of the indictment, and its determination thereon can be tested by appeal, the writ of prohibition will not lie. It follows, therefore, that the application for an absolute writ of prohibition must be denied and the alternative writ heretofore issued quashed.
Shearn, J., concurred.
Motion for absolute writ of prohibition granted. Order to be settled on notice.
Code Crim. .Proc. §§ 517, 519, subd. 3.— [Rep.