87 A.D. 487 | N.Y. App. Div. | 1903
This is an appeal from an order of the Court of General Sessions of the Peace of the county of New York, denying a motion made by the defendants to quash an indictment found against them, the grounds of the motion being that the indictment was based upon illegal evidence received by the grand jury, to the prejudice of the rights of the defendants and each of them before the grand jury, and, further, that the legal evidence received by the grand jury was entirely insufficient to warrant the finding of an indictment against them or either of .them. The indictment was found in December, 1901. The defendants demurred thereto, and the demurrer was sustained in the first instance, but the judgment sustaining it was reversed by this court in August, 1902, and the judgment entered upon that reversal was affirmed by the Court of Appeals in June, 1903. The offense charged against the defendants, and set forth in the indictment, is that they, as officers of a corporation organized under the laws of the State of Delaware, had sworn that certain
It is doubtful, to say the least, whether the order denying the motion to quash the indictment can be reviewed by an independent appeal (People v. Petrea, 30 Hun, 98; Ostrander v. People, 29 id. 513; People v. Beckwith, 42 id. 366; People v. Hovey, 30 id. 354; People v. Rutherford, 47 App. Div. 209; People v. Trazza,, 128 N. Y. 529), or whether, if "the order is appealable at all, it must not be brought up for review as an intermediate order on an appeal from a judgment of conviction. It is not necessary, however, to decide that question now, for the affidavits, even if an appeal lies, were entirely insufficient to justify'the granting of the application. The assertion that the evidence before the grand jury who found the indictment was none other than that which was produced before
There is nothing in the affidavits used upon this motion sufficient to overcome the presumption as to the regularity of the indictment and the sufficiency of the evidence upon which it was found, and the order appealed from should be affirmed.
Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.
Order affirmed.