15 N.Y.S. 528 | Court Of Oyer And Terminer New York | 1891
The motion to set aside the indictment is made upon the grounds—First, that there was no legal evidence before the grand jury to support it; and, second, that material illegal evidence was received by the grand jury. It is objected by the people that a motion to set aside the indictment can be made only on the grounds specified in section 313 of the Code of Criminal Procedure, and that the court has ne power to set aside an indictment for any other reasons. If that be so, of course this motion must be denied. It is necessary, therefore, to inquire into the power which the court has over the findings of the grand jury. At common law, the courts had uniformly held that they had the power to set aside or. quash an indictment on motion, not only for defects of form, but also for errors and irregularities which were made to appear by extrinsic evidence. I have been able to find no case in which the power has been denied. Whether or not, however, the power will be exercised, is largely, if not entirely, a matter of discretion. It is quite clear, too, that at common law the courts had asserted the power and their duty to set aside indictments when it was made to appear that they had been found without evidence, or upon illegal or incompetent testimony. U. S. v. Coolidge, 2 Gall. 364; People v. Restenblatt, 1 Abb. Pr. 268; People v. Briggs, 60 How. Pr. 17. The reason was given by Judge Story in the case first cited above. He says that “it is of the highest importance that no citizen be tried until he has been regularly accused by the proper tribunal. Every indictment is subject to the control of the court,” and when it has been found irregularly, and upon the mere statement of a witness without oath, it should be set aside. The power to control its own process, and to regulate proceedings in furtherance of justice, and to avoid oppression and persecution, is inherent in the courts, and every part and portion of the court is subject to its exercise. Ho reason is perceived why the grand jury alone should be free from this control. While, as a rule, that body is so composed that the rights of citizens and of the people are safe in its hands, yet instances are not unknown where it has been moved by improper motives, and controlled by improper prejudices, and where its members have lent themselves to wicked violations of their oaths. It would be an evil day, indeed, if any body, which has the power in secret, and almost uncontrolled, to pass upon the rights of citizens, should be entirely free from supervision, no matter what its action was or how it was brought about. It has been said, to be sure, that the grand jury are the judges of the fact and the law. If by that it is meant that the grand jury, upon a case presented to them, havethe power, and it is their duty, to determine the facts and apply the law, it is undoubtedly true. But if it be meant that their determination is not subject to review until the indictment found by them shall be brought to trial, if it is formally correct, it is not the law. In the case cited Judge Earl says nothing of the kind. His words were: “It [the grand jury] was clothed with power to determine the facts and the law, and we know of no way to review its determination, unless it be by motion to quash the indictment or in arrest of judgment.” People v. Dimick, 107 N. Y. 13, 34, 14 N. E. Rep. 178. It will be noticed that he necessarily implies the right and duty of the court to review the action of the grand jury in a proper case. I can conceive of no greater evil than that of a temporary body of inquisitors sitting in secret, which may at their will, upon such evidence as they choose to receive, or without any evidence, subject any citizen to the disgrace of a public arrest and accusation for a heinous crime and the expense of a trial. In view of the influences which may sometimes be brought to bear upon grand juries, and the peculiar motives which may sometimes sway them, not a few of the states of the Union have done away with the institution, rather than to run the risk
Applying these rules, we will examine the evidence upon which this indictment was found. The indictment contains three counts, and it is for a conspiracy. Under each count there is set forth one overt act, as is required by section 171 of the Penal Code. There is no proof of any overt act on the part of any of the following defendants: Max Brickner, Louis Moore, Frank J. Shell, Moses L. G-arson, Abraham Katz, Henry Michaels, Henry Hays, Jacob A. Britenstool, and Louis Stein. 1 do not mean to say that overt acts are proved as to the others, but, as to those named, not even malice could say that the evidence showed any act which could by any interpretation be construed as a violation of law. The failure to show an overt act on the part of these defendants is not material if it is made to appear that •they entered into a conspiracy which the overt acts alleged were the result
On the 23d of March a paper was published in the Bochester papers. It purported to be signed by the names of certain persons, firms, and corporations. But that any one of the signatures was genuine, or that any of the defendants ever saw it, was not attemped to be proved. The original paper was not produced, but a newspaper was shown to the witness, who said that it was the individual expression of the members of the Clothiers’ Exchange; that it was not.done as a corporation; that it was signed by the names appended to it. The witness did not say that he had seen the original, nor did he swear that any one of the persons whose names were appended signed them there, nor was. it suggested that any defendant ever saw the paper. After that paper had been put before the grand jury, another printed paper was shown to the witness, not signed, to which he testified that he did not remember whether it was signed at all. “I probably signed as having written it; after they signed, that was the last I saw of it.” The word “they” refers to the firms above mentioned. But it cannot refer to any defendant. The witness then, testified as follows: “There are 21 firms in the Clothiers’ Exchange? Yes, sir. Wile, Briekner & Wile is one? It is the Wile-Brickner Company. It is a corporation. And Joseph Cauffman, of Cauffman & Dinkelspeil? Yes, sir. And Louis Moore? Yes, sir. And Kramer, Schwartz & Co.? Yes, sir. And Moses Carson, of Carson, Meyer & Co.? Yes, sir. And F. Shiel,-^what is the first name? . Frank J. And B. Bothschild, of Bothschild, Meyer & Co.? Yes, sir. And Abram Adler, of Adler Bros. ? Yes, sir. And Abram Katz? No, sir; it is Nathan Stein. Abe Katz was taken sick.
I have not considered whether the overt acts charged in the indictment are sufficiently proved, or whether the facts proved are a sufficient foundation for the allegations made. Those questions are not material, unless there is proof of the conspiracy. The indictment must be set aside, and the action dismissed, because the evidence before the grand jury did not warrant it. .