14 N.Y. Crim. 404 | New York Court of General Session of the Peace | 1900
This is an application made by the defendant for an order setting aside the judgment and conviction herein and directing a new trial.
On March 16, 1894, the defendant, William Dwyer, then a member of the New York police force, was tried and convicted, before Hon. Rudolph B. Martine and a jury, and sentenced to imprisonment for two months under an indictment charging assault in the third degree and oppression. No appeal was taken, and the defendant served out his imprisonment. Because of bis conviction and sentence it is understood that he was dismissed from the police force.
Application is now made for a new trial, first, “ upon the broad, ground of newly discovered evidence showing a conspiracy formed and carried out by the complainant herein and all the witnesses for the prosecution,” and on the further ground that two of the witnesses, under dates of September 24, 1898,
“ The application for a new trial must be made before judgment, except an application made under subdivision 7 of section 465, which may be made at any time within one year, and except in case of a sentence of death, when the application may be made at any time before execution.”
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This application is made under subdivision 7 of section 465 of the Code of Criminal Procedure, but was not made within a year. It is not clear that the facts presented in the petition would bring- the case within this subdivision, which reads as follows:
“ When it is make to appear, by affidavit, that, upon another trial, the defendant can produce evidence such as, if before received, would probably have changed the verdict, if such evidence has been discovered since the trial, it is not cumulative, and the failure to produce it on the trial was not owing to the want of diligence. The court in such cases can, however, compel the personal appearance of the affiants before it for the purpose of their personal examination and cross-examination, under oath, upon the contents of the affidavits which ffiey subscribed.”
It is urged that the petition should be granted in the interests of justice, as it is necessary to enable the defendant to right the alleged wrong and to obtain his reinstatement on the police force.
As to the contention that the court in its general powers and in the interests of equity should order a new trial, it is enough
The same facts that would move the court to order a new trial would certainly influence the governor, and thereafter the action of the police board. .
It is to be noted that the sentence in this case has been fully executed, and it is not in the power of any court to alter the fact or to undo what has been done in that particular, and it is a settled principle that a court will not engage in a proceeding or occupy its time in the consideration of a case wherein it can afford no possible relief.
If a new trial were granted and a new conviction had, the court certainly could not, in justice, impose another sentence. If an acquittal was had, the court is powerless to undo the fact that the defendant, has already served out the sentence. The provision in the Code limiting the time in which a new trial may be ordered is certainly a wise one. To order a new trial after a lapse of years, particularly when a sentence has been fully executed and when witnesses have disappeared or may be dead, and upon affidavits of certain of the witnesses that they deliberately committed perjury, would certainly be against public policy and make litigation everlasting.
The motion for a new trial is, therefore, denied, but, of course, without prejudice to an application on the merits and the facts to the executive of the state.
