1 N.Y.S. 55 | New York Court of General Session of the Peace | 1888
This is a motion to set aside an indictment
found in this court on April 16, 1888, against the above-named defendant for the crime of grand larceny in the first degree.
The defendant relies upon two distinct grounds for the relief he demands.
First—That the grand jury found the indictment upon illegal evidence, and,
Second—That the grand jury violated his constitutional right in compelling him to attend before them as a party and testify against himself.
It appears from the indorsement upon the indictment of the list of witnesses examined before the grand jury, and also from the uncontradicted averments contained in the defendant’s affidavit, that while the grand jury had under investigation the criminal charge against the defendant, he
If both or either of these grounds of objection to the indictment are true, there can be no doubt, both upon authority and in reason, that the same should in some manner be summarily disposed of without putting the defendant to his defense and trial thereon.
The learned district attorney contends that section 313 of the Code of Criminal Procedure only provides two different grounds for setting aside an indictment, and that the defendant does not bring himself within either, and cites People v. Petrea, in 92 N. Y. 128, as sustaining his contention of want of power in the court to grant defendant’s motion ; but it will be observed on reading from Judge Andbews’s opinion in the Petrea case, that he expressly holds that when the defect invades a constitutional right the court is bound to take notice of it, although unauthor-. ized to do so by any statute, and even also if a statute seems to preclude the raising of the objection.
The constitution of this State provides in article 1, section 6, “ that no person shall be compelled in any criminal case to be a witness against himself.” If the grand jury, in its investigation of the charge against the defendant, violated the letter and spirit of this constitutional provision, the indictment should undoubtedly be set aside. Bishop, in his work on Criminal Procedure, at section 113, says that every right of the prisoner must, in some way,
The evidence of the defendant, taken before the grand jury under the circumstances stated, was clearly not only unconstitutional, but was also illegal, and inasmuch as the Code of Criminal Procedure provides that the grand jury has no right to receive any but legal evidence which would be admissible upon the trial, upon this ground, as well as the other, the indictment should be quashed.
Judge Hammond, in a recent case, reported in 4 N. Y. Crim. Rep. 329 (People v. Sellick), held, on setting aside the indictment, that an indictment should not only be set aside when there has been improper influence used upon
o
it does not appear that these various provisions of the Code were observed by the grand jury when they examined the defendant as a party charged with committing a crime which they were investigating. On the contrary, it does
For the foregoing, reasons I am constrained to come to the conclusion that the indictment was found, not only upon illegal evidence, but that the grand jury in finding it violated the defendant’s constitutional right in compelling him to be a witness against himself.
It is for the foregoing reasons ordered that the indictment be set aside, and that the case be resubmitted to another grand jury.
Note,—See People v, Price, 6 N. Y. Crim. Rep. 142.