172 Misc. 185 | N.Y. Sup. Ct. | 1939
On January 2, 1935, the relator was indicted in the county of Queens on two counts, one charging her with the crime of burglary in the second degree and the other larceny in the first degree. On February 4, 1935, an order was entered granting a motion to dismiss the indictment on "the ground that the evidence before the grand jury was insufficient upon which to found same. On March 19, 1935, the grand jury again indicted the relator, charging her with criminally receiving stolen property. The two indictments are based upon the same transaction, that is, an alleged burglary committed June 23, 1934, in which the articles specified in both indictments were stolen from one Miriam Danson. On May 23, 1939, the relator was arraigned, pleaded not guilty, and is in jail awaiting trial.
She now claims that the grand jury which found the second indictment after the first had been dismissed was without jurisdiction to do so and that, therefore, the indictment is void and of no effect. The basis of the claim is that the order granting the motion to dismiss the earlier indictment did not contain a provision permitting the resubmission of the case to another grand jury.
The relator relies primarily upon section 317 of the Code of Criminal Procedure. Section 317 provides that if a motion to set aside an indictment be granted the defendant be discharged
The cases cited by the moving party all deal with situations where there were demurrers, where, of course, the rule is different. (Code Crim. Proc. § 327.)
It follows that the writ must be dismissed.