137 Misc. 314 | N.Y. Sup. Ct. | 1930
The relator, on a writ of habeas corpus, seeks her release from the custody of the sheriff of Erie county. Such sheriff, as his return to the writ of habeas corpus herein, certifies that the relator is in his custody by virtue of a bench warrant issued out of the County Court of Erie county after an indictment charging her with the crime of murder in the first degree had been found against such relator by the grand jury of such court. Both in her petition and in her traverse to the return, the relator claims that she has once been put in jeopardy on a trial of such indictment, and that she is about to be tried again on the same indictment, and that by such proposed second trial she would be twice put in jeopardy, in violation of the Constitution of the State of New York (Art. I, § 6): “ No person shall be subject to be twice put in jeopardy for the same offense.”
A person has been put in jeopardy once if he has been convicted or acquitted or if be has been placed on trial and the jury drawn and the trial has been terminated arbitrarily by the court and without his consent before verdict. (People ex rel. Bullock v. Hayes, 215 N. Y. 172; People v. Montlake, 184 App. Div. 578; People ex rel. Stabile v. Warden, 139 id. 488; affd., 202 N. Y. 138;
The testimony taken before this court on this proceeding developed the following facts:
By an indictment returned on the 10th day of March, 1930, to the County Court of Erie county, the grand jury of thpt court charged the relator herein with the crime of murder in the first degree; on the same day she was' arraigned and plead not guilty to such indictment; subsequently, on her statement that she was without means to employ counsel, attorneys were assigned by the court for her defense, and a trial of the defendant on such indictment began in the County Court of Erie county on the 19th day of March, 1930, and continued until the evidence on both sides was closed on the 31st day of March, 1930, at which time the court took a recess until nine-fifteen a. m. on the 1st day of April, 1930; at that time counsel were to proceed with their summation and the court was to submit the case to the trial jury. On the 1st day of April, 1930, the relator left the Erie county jail, in company with an officer, for the purpose of appearing at the adjourned session of her trial; on her way from the jail to the court she complained to the officer in charge of her that she thought she was ill, and when she arrived at the court and had been seated, she again drew the attention of the officer in charge of her and said that she was ill and showed her a bloody handkerchief which she had removed from before her mouth, stating that she had had a hemorrhage; she was removed to a rest room, had an attack of nausea, apparently collapsed and was taken to the Buffalo City Hospital; the court recessed until the following morning, April second, and that morning again recessed until the afternoon of the same day. In the meantime the court designated certain physicians to make a physical examination of the relator, and a report of such physicians was made to the court that the relator was in such physical condition that it would be necessary for her to have at least two weeks’ absolute rest in the hospital, and that she could not, with safety to her health, proceed with the trial on the second day of April; the physicians based their report to the court upon the history given to them of a hemorrhage and previous pulmonary tuberculosis suffered by the relator. On receiving such report from the physicians and in the absence of the relator who was then in the hospital, but with the consent of her attorneys and the district attorney., the court declared a mistrial, due to the ill-health of the
A writ of habeas corpus proceeding is a proper means to pursue in raising the question of double jeopardy. (People ex rel. Stabile v. Warden, supra; People v. Montlake, supra; People ex rel. Fish v. Smith, 177 App. Div. 152.)
To support her claim that she will be put in double jeopardy if prosecution against her for the crime alleged in the indictment continues, the relator advances the following arguments:
fl) That the County Court had no right, in the absence of the relator and without her consent, to declare a mistrial;
(3) That the acceptance of the plea of guilty of murder in the second degree" and the subsequent proceedings thereon, amounted to an acquittal of the relator.
As to whether or not the court had a right to declare a mistrial without the consent of the relator, the rule in reference to this question is that the court has no right, arbitrarily or capriciously, to discharge a jury; that a jury may be discharged with the leave of the court and with the consent of the public prosecutor and of the defendant, but a jury may be discharged without the consent of the defendant only if, by the defendant’s own act, he has brought about a condition under which such trial could not proceed with justice to all concerned, or if urgent necessity, or dire emergency, would prevent the doing of justice to all concerned. (People ex rel. Stabile v. Warden, supra; People v. Barrett, supra)
In the proceeding at bar, either the relator deceived the court by the appearance of a hemorrhage or she really had a hemorrhage, and the physicians having received a history of a hemorrhage and of previous pulmonary trouble, advised the court that it would be dangerous to the health of the relator to proceed with the trial, and either one of these causes, the fault of the relator or her real illness, was sufficient reason for the court to declare a mistrial, and this being so, the relator could be required to stand trial again on the indictment. (People ex rel. Stabile v. Warden, supra; People v. Barrett, supra; Fails v. State, 60 Fla. 8; Rex v. Edwards, [1812] 3 Campbell’s Nisi Prius, 207; King v. Stevenson, [1791] 2 Leach Crown Cases, 546.)
It having been determined that there could be a mistrial declared under the circumstances involved, as above stated, there comes the question as to whether such mistrial could be declared or the jury discharged in the absence of the relator. Section 356 of the Code of Criminal Procedure provides that a defendant must be present during his trial for a felony. The relator urges that the declaration of a mistrial and the discharge of the jury were parts of the trial and could not be made except in the presence of the defendant relator, and that as such declaration, mistrial and the discharge of the jury did not take place in the presence of the defendant relator, she stands, by reason of such facts, acquitted. The court cannot agree with these conclusions advanced on behalf of the defendant relator. Assuming that the defendant relator had absconded, and, for that reason, it became necessary to declare a mistrial, or presuming that she became so ill that apparently it would be weeks before she could appear in court again, then to
There remains now the question of the validity and effect of the plea taken in the hospital. If this were a legal plea, it would be a bar to a second trial and would result in sentence, but the court is at present inclined to be of the opinion that the session held at the Buffalo City Hospital was not a legal session of the court and that, therefore, the plea was not legally taken. It has been held that the County Court may hold sessions for business not requiring the presence of juries at places other than the places fixed for jury trial (People ex rel. Woodin v. Ottaway, 129 Misc. 120; affd., 222 App. Div. 711; affd., 247 N. Y. 493), but apparently such other places must be formally designated as places at which court terms will be held, and the designations of such other places filed in the office of the county clerk. (Judiciary Law, §§ 191, 192
No formal designation, naming the Buffalo City Hospital as a place in which a term of court would be held had been made by the court. Even though it were legal to hold the session at the hospital and to take a plea there, such plea still stands on the record, and if such plea still stands, then the relator is legally in the custody of the respondent awaiting sentence on such plea. It is true that the record of the County Court shows that the court said that the original plea of not guilty would stand, but at no place in the record does it show that the County Court set aside the plea taken at the hospital. Even though the plea taken at the hospital were legally taken, and even though the County Court had endeavored to set aside such plea, this court can find no authority permitting
In view of the foregoing conclusions, this court is of the opinion that the relator is legally in the custody of the respondent, and that this proceeding should be dismissed.
Amd. by Laws of 1923, chap. 446.— [Rep.