149 N.Y.S. 823 | N.Y. App. Div. | 1914
The defendant herein was indicted for the crime of manslaughter in the first degree by a grand jury sitting with the Supreme Court in the county of Schuyler. At the time the grand jury reported five indictments were handed up, three of which were sealed and two open. One of the open indictments was the one in question here, the indictment against the defendant Russell A. Bailey. The other open indictment was against Chester Carter. Carter was arraigned and pleaded guilty and was sentenced. Bailey pleaded not guilty. The minutes of the clerk on the day that the grand jury handed up its report is as follows:
“Thursday Morning-, December 4, 1913.
“Grand Jury arose and reported Five Indictments, 3 sealed and 2 open.
' ‘ Grand Jury discharged by the Court.
“ The People of the State of New York agst. Chester Carter, Defendant.
“Indictment for Grand Larceny in Second Degree.
*758 “The People of the State of New York agst. Russell A. Bailey, Defendant.
“Indictment for Manslaughter in First Degree.
“Chester Carter arraigned, stated that he did not have counsel, and did not want any. Entered a plea of Guilty.
“Russell A. Bailey was arraigned and entered a plea of Not Guilty.
“The Court directs that an order be entered sending other indictments to County Court.”
On December 9, 1913, the defendant, together with his attorneys, appeared in the County Court and made application to that court for financial assistance with which to conduct his defense. The County Court listened to the application, and made an. allowance of $100 to the defendant out of the funds of the county for that purpose. Subsequently, and on January 5, 1914, the trial proceeded, and the defendant was found guilty by the jury of the crime charged in the indictment. After the verdict was pronounced the defendant’s attorneys moved for an arrest of judgment on the grounds that no order for the removal of the indictment from the Supreme Court to the County Court had been made or entered as required by section 351 of the Code of Criminal Procedure, and, therefore, that the County Court had no jurisdiction of the subject-matter of the action or of the defendant. The County Court took the motion under consideration and subsequently granted the order setting aside the verdict.
Section 351 of the Code of Criminal Procedure, under which the defendant made his motion, has no application to the case at bar. When an indictment is transferred by the court of its own volition, or on motion of the district attorney, from the Supreme Court to the County Court for trial, it is done under subdivision 6 of section 22 of the Code of Criminal Procedure, and not under section 351. However, the fact that the defendant has moved under a section which does not apply will not deter us from considering the matter on its merits.
Was an order made by the Supreme Court sending the indictment of the defendant to the County Court ?' This is the question and the only question to be determined here. The last sentence of the clerk’s minutes are the words in dispute. That
But whatever ambiguity there may be in the language of the clerk’s minutes, we do not believe the substantial rights of the defendant have been affected. It is the common custom of the Supreme Court in every county, on the day of its adjournment, or at the time the grand jury reports, to send all criminal matters, except murder in the first degree, to the County Court for trial. Of course if there was no order in this case sending this indictment to the County Court that court acquired no jurisdiction; but under the circumstances here we have concluded that there was such an order. The County Court in this case had jurisdiction of the subject-matter; the
Eecognition of unsubstantial defects and technicalities in the criminal law has given rise to wide-spread criticism and comment on “the law’s delay.” The recent amendments to all the Codes are admonishing the courts against this. It is our duty to heed these admonitions, particularly in this case, where the rights of the defendant have in no manner been jeopardized.
The order of the County Court should he reversed and the defendant remanded to that court for sentence.
All concurred, Smith, P. J., on the ground that the defendant, by making application to the County Court for funds, gave a practical construction to the order sending “other indictments ” to the County Court as including his own.
Order reversed and defendant remanded to the County Court for sentence.