95 N.Y.S. 790 | N.Y. App. Div. | 1905
It is elementary that the purpose of the statute referred to. is to secure tó a defendant a fair and impartial trial. It is equally well settled that a motion-of this kind is addressed to the discretion of the justice at Special Term, and that ordinarily his decision will. not be interfered with. It, however, is true that'the appellate: court ’ is charged with the duty of determining from the record -presented to it whether such application should or should' not be. granted. In reaching a conclusion the decision of the judge at Special Term., is entitled to great weight, but the: fact that such a decision has been made- by no means relieves the appellate- court from responsibility
The facts and circumstances contained in the record, leading to such conclusion, are too numerous tcf refer to in detail in an opinion. The indictments charge the defendant with' grand larceny, in that he did feloniously appropriate to his own use funds belonging to the German Bank of Buffalo, he being the bailee, servant, agent and trustee thereof. He is charged in such indictments with the crime formerly known as embezzlement, and also with larceny at common law. One of the indictments charges him with the crime of perjury in that he, as president of the German Bank, did swear to a false report to the Superintendent of Banking of the Banking Department-of the State of Hew York. And still another of the indictments charges' the defendant with a misdemeanor, in that he participated in the fraud in the case of the fraudulent insolvency of said bank within the provisions of subdivision 1 of section 603 of the Penal Code. ,
It appears that all the indictments have reference to the alleged crimes or misconduct of the defendant in transactions had by him with or relating to his management of the German Bank of the City of Buffalo. That bank was organized under the laws of the State of Hew York, was incorporated in 1879 with, a capital stock of $100^000, divided into 100 shards of $1,000 each, and was located in the city of Buffalo in the county of Erie. There was what is called a “ run ” upon the bank, and as a result on the 5th day of December, 1904, the Superintendent of Banking of -the State of Hew York took possession of it and closed its doors. An action was immediately commenced by the Attorney-General of the State for a dissolution of the bank and for the appointment of a receiver,
It is not within the. province of this court to determine as to the guilt or innocence of the defendant, to determine whether or not
It is urged that it cannot be known that an impartial jury could not be obtained until an attempt is made to secure the same. We may assume that any juror examined would intend to answer truthfully as to the state of his mind respecting the guilt or innocence of the defendant, but if the feeling against the defendant in Erie county is such as is indicated by the record, it is apparent that many men, men of character and integrity, would be unconsciously influenced by such feeling and that such unconscious feeling would not necessarily be disclosed by any preliminary examination which might be made as to their competency as jurors.
We deem it unnecessary to continue the discussion. It is sufficient to say that upon the record presented to us we are convinced that if the defendant were placed upon trial in the county of Erie upon any of the indictments referred to it is more than probable he would_ not have a fair and impartial trial, such as under the Constitution and the laws of the State he is entitled to.
It follows that the order appealed from should be reversed and defendant’s motion to change the place of trial of said indictments from the Supreme Court of the county of Erie to a term of the
All concurred.
Order reversed and motion granted, the county in which the trial is to he had to he determined^ by this-court, and counsel for the parties may be heard upon that question- on Friday November 17, 1905, at the opening .of tlie court on that day.