33 N.Y.S. 612 | New York Court of General Session of the Peace | 1895
I give the expression of opinion as recorder of this court, based upon knowledge derived w-hile sitting here as recorder and acting in the capacity of magistrate in issuing warrants, and also as a magistrate on the arraignment of the accused, that in the interest of justice to the defendant, as well as to the people, in my opinion it would be improper to submit any question to the grand jury until after.the examination. In view of the statement of the district attorney, I am inclined to
The court disagrees with the learned district attorney in the proposition that he has no power. The court will exercise the power that it believes it is invested with to see that oppression or injustice is not meted out to any one. If the learned district attorney acts upon the suggestion I am making, I will require the defendant to furnish additional bail in the sum of $5,000, and I repeat my suggestion that no matter relating to the offense charged against this defendant be submitted to the grand jury until after the examination before the recorder as magistrate. If the district attorney does not see proper, in the exercise of his official discretion, to act upon that suggestion, you prepare a proper affidavit, and submit it to me this afternoon, and I will take such action as I think proper. I wish the district attorney to understand the position of the court on this question of power. Ordinarily, the position of the district attorney is correct; but in the exercise of the discretion invested in the court, as being adviser in the first place of the grand jury, while the district attorney is the legal adviser, yet the court, of which the grand jury is a constituent part, is primarily the adviser of the grand jury; and in the interests of justice, and if it appears to the court that probable oppression would result from the action of the grand jury, the court, acting as a part of that institution, can qdvise the grand jury in any given case, and the court will assume that power to advise the grand jury in this case:
