37 N.Y.S. 998 | N.Y. App. Div. | 1896
The defendant was indicted for a felony, and his trial took place, in the Court of Oyer and Terminer, iii the month of April, 1895. On the eleventh day of May, the trial was brought to an end by a •disagreement of the jury. The judge presiding at the term at which
. This principle has also'been recognized in several cases reported in the courts of this State, notably in Von Rhade v. Von Rhade (2 T. & C. 491), decided in the first department. That was an action for-divorce in which,, as is well known, the cotirt has only such jurisdic-.
It must be borne in mind that the service of the original notice of motion in this proceeding had the effect, not only to tix the time when the moving party sought to bring the matter to hearing, but it also had the effect to give to the court the power from the time of its service to do any act which a court 'of general jurisdiction might do in the course of the particular proceeding. The jurisdiction of the court, which had been acquired by the service of the notice of motion, could not be divested because of the fact that the court in attempting to do some act in the course of the proceeding, did not observe that regularity which the statute required. An order to show cause may be made in a special proceeding as well as in an action, as we have seen. The' judge,- therefore, had jurisdiction undo ubtedly to make the order to show cause, which was returnable on the twentieth of May. When that order was made it was not only within the power, but it was the duty of the Special Term before which it was returnable, to pass upon the question presented by it. That question was whether or not the motion noticed for June third ¡should be heard at an earlier day. As it was the duty of the court
Although we have reached the conclusion that the order made on the twentieth of May, by .which this motion ■ was denied, was not void, still it was undoubtedly erroneous. There can be no doubt that under the provisions of the Code of Criminal Procedure above cited,'no right is given to the district attorney to move to change the. place of trial of a criminal action. If the People have such right under any circumstances, which we do not here decide, that must be found elsewhere than within these sections of the Code of ■ Criminal Procedure. The court had jurisdiction undoubtedly to hear and decide this application made upon the motion of the defendant, but it was error to attempt to shorten the time within which the motion should be made. The Legislature have prescribed in this as in "many other matters the time within which proceedings at law shall be taken. Eor instance they have directed that at least eight days’ notice of an ordinary motion must be given unless the time is shortened by an order to show cause. They have . required at least fourteen or sixteen days’ notice of trial, and that costs should be taxed upon two days’ notice. All these requirements are binding upon the courts. Adherence to them is not absolutely necessary in every case to the existence of jurisdiction, because after the court has acquired jurisdiction it is not lost by an irregular proceeding; that is, by one which the court had power to take, but is only made irregular because it was taken too soon. But yet such adherence is necessary to correct action in the matters involved.,' -When the Legislature has directed the time within which an act must be done, it is improper to shorten that time except as a condition of granting a favor. Especially is this strict, adherence to the rules of procedure necessary in actions involving the administration of criminal law. A speedy determination of criminal actions is Undoubtedly of great importance; it is undoubtedly of great benefit' t,0 the community that punishment of crime should not only be certain, but quick. But it is of far more importance in the administration of the criminal law that the rules for gravé and orderly procedure which have been laid down by the statute, should be
In the case at bar we do not-think such rights were protected as they ought to have been upon this motion. The facts presented by the voluminous papers upon the application to change the place of trial, called for serious and careful consideration. Many of them undoubtedly were of great force and they might well have led the defendant to believe that it was doubtful whether an impartial jury coiild be procured to try his case witliin the county of Mew York. ■ Without attempting here to express any opinion as to the force of these facts, or whether the plaintiff was entitled to any relief upon them, it is sufficient to say that they were such as called upon the court to whom they were presented to carefully weigh and consider them, even if it did not call upon the People to answer or explain them. It is apparent from the papers that no such consideration was had. The court undertook to compel the defendant to bring on this motion at a. time sooner than was fixed in the notice, without any fact having been made to appear which would warrant the exer-' cise of that power, even if it existed. The only facts stated in the" affidavit of the district attorney were that a large number of jurors had been summoned to try the case, the hearing of which was set down for that day. Those facts might have been important as giving a reason why the stay should have been vacated as improvidently granted, or why the court, as a condition of retaining the .
The order denying the motion to change the place of trial should, , therefore, be reversed.
. The order, in addition to denying the motion to change the place of trial, vacates the stay which had been granted of the trial of the action in the Court of Oyer and Terminer. This would have been the effect of the order, even though nothing had been said about the stay, for when the proceeding had been brought to an end by the final order of the court the stay granted pending the proceeding necessarily fell of itself. But so much of the order as vacates the stay must also be reversed with the other order. The effect of , the final order, which is hero reviewed, was to put an end to the special proceeding to change the place of trial and to leave the matter in precisely the same situation as though no such proceeding had been begun.. When, therefore, the case was moved in the Court of Oyer and Terminer, it was the duty of the court to proceed in the "criminal action unless for some good reason shown there the trial should be postponed. The only objection made there was that the order here reviewed was void, which we have found was, not the case. No claim was made in that court that the defendant was not ready for trial, except for the reason that his counsel was absent, but that was provided for by the court. This action of the court, therefore, in proceeding with the trial was proper, if upon the trial an impartial jury was impannelled, as we have found upon the appeal from the judgment to have been the case. No. injustice was done to the defendant by the action of the court in the premises, because
We do not pass, of course, upon the merits of the defendant’s application to change the place of trial. This decision is put solely upon the ground that the action of the Special Term in compelling the defendant to proceed to a hearing of this action at a date earlier than that fixed in his notice was erroneous.
The order should be reversed, but, under the circumstances, without costs.
Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.
Order reversed, without costs.