91 N.Y.S. 486 | N.Y. App. Div. | 1904
An indictment against these defendants was pending in the Court of General Sessions of the Peace in and for the county of New York, and they moved to dismiss it. It was found on the 9tli of December, 1901, and the defendants demurred to it. The demurrer was overruled, and the indictment was sustained by this court
It is the opinion of the court that the order is not appealable, and that view is sustained by People v. Petrea (30 Hun, 98); People v. Trezza (128 N. Y. 529); People v. Mayhew (151 id. 607); People v. Dunn (31 App. Div. 140; affd., 157 N. Y. 528). Appeals in c -iminal cases may be taken only where expressly allowed by statute, and the only appeal allowed by the Code of Criminal Procedure is from a judgment of conviction, on which appeal an intermediate order or proceeding forming part of the judgment roll may be reviewed. It may not be necessary, therefore, to consider whether or not the court below erred in denying the application; but even if the order were appealable, then it is plain that on the merits the application was properly denied.
For two years these defendants resisted and postponed pleading by the interposition of a demurrer; they were charged with perjury in falsely swearing to a certificate of payment of capital stock of a corporation, which certificate was filed in Delaware but sworn to here. This court and the Court of Appeals held that the indictment was good. By the dilatory proceedings of the defendants they postponed an inquiry into the facts of the case for two years. The provisions of section 668 of the Code of Criminal Procedure may leave it discretionary with the court in which the indictment is pending to dismiss, and the words “ good cause to the contrary ” may possibly be construed as indicating that it is the duty of the court to dismiss, unless good cause for not doing so is shown. Here that cause is shown. It appears from the affidavit of Mr. Nott, the assistant district attorney, that the case was delayed by various appeals taken by the defendants, and that no plea was made until November, 1903 ; that since that date the case has been in his hands and he has been at work on it; that it is a complicated case; that the indictments allege that the defendants committed perjury in swearing that §1,000,000 capital stock of the Delaware Surety Company had been paid in in full; that the case involves to a large extent negative proof, and that the affairs of the company had to be investigated, and it was not until after notice was served on the 12th of July, 1904, that the indictments would be taken up for trial that this motion to dismiss was made; that the district attorney is
The order was not appealable, but even if it were, good cause is shown why the indictment should not have been dismissed.
The appeal from the order should be dismissed.
Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.
Appeal dismissed.