124 N.Y.S. 158 | New York County Courts | 1910
This is an application by the defendant for a certificate under section 56 of the Criminal Code to send the case to the grand jury. The charge was made before M. H. Bunio, justice of the peace of the town of Malone, Franldin county, against the defendant for assault in the third degree. After the defendant was arraigned and pleaded not guilty, an application was made to the county judge for a certificate under section 56-of the Criminal Code on the ground that the defendant had a witness who was out of the State, and that no provisions were contained in the Criminal Code whereby the defendant could procure the attendance or secure the testimony of said witness-in his behalf. This application was denied, for the reason that it was not a good ground upon which to grant a certificate, a® in case the defendant went to trial before the justice it might be that he would be discharged and not need the testimony of the absent witness, and if convicted he could no doubt procure the allowance of an appeal to the County Court and a new trial (Code Crim. Pro., §§ 754, 764, 768), in which case the-County Court could procure, upon his application, the testimony of the defendant’s witness under a commission. After-said denial, the defendant appeared before the justice on the adjourned day -and demanded an examination. The justice granted the same. The witnesses for the prosecution were ex-examined and cross-examined by the defendant’s counsel, and
We now come to the question whether having granted the preliminary examination upon the defendant’s request, and upon the evidence being taken, and the defendant moving to have the charge dismissed on the ground that the evidence was insufficient to make a case, and the justice having denied it, the justice is hereby prejudiced and not impartial to such a degree that the defendant cannot have a fair trial, and that the defendant has, by reason thereof, a right to a certificate sending the case to the grand jury. I do not think the defendant’s claim is tenable. The fact that the justice, after hearing the evidence on the part of the prosecution, did deny the defendant’s motion to be discharged was no more the forming of an opinion in regard to the evidence on the part of the justice than the fact that the justice, at the time the information and deposition was laid before him, determined to issue the warrant. It was simply a determination by him that the facts warranted the issuing of a warrant and the holding of the defendant to trial. Moreover, the defendant is not obliged to be tried before the justice. He has a right to demand a jury trial, and if the
Application denied.