10 Abb. N. Cas. 192 | N.Y. Sup. Ct. | 1882
— Since the argument of this motion, on Saturday afternoon last, I have been constantly occupied with the Ulster circuit, the session of which has closed this (January 20, 1882) morning. The public interest manifested in this case, the gravity of the charge, and the social and political standing of the parties implicated, as well as the unsettled condition of the law in regard to a motion of this character, unite in requiring a statement of the reasons for judicial action, which could not, owing to my engagements in court, as above stated, be sooner prepared.
At the Albany sessions in June, 1881, the defendant, Loren B. Sessions, was indicted for the crime of bribery, the act alleged being the payment by him of $2,000 to Samuel H. Bradley then a member of assembly of the state of New York, to induce the said Bradley to vote for Ghauncey M. Depew to represent the state in the senate of the United States.
The grounds of the motion are: That the case is one of unusual public interest and importance, made so by the official and political standing of the parties involved in the charge, and that grave and difficult legal questions must arise upon the trial thereof. The statement just made necessitates an examination of the statutes regulating this and similar applications.
By the Code of Criminal Procedure (sec. 344) “ a criminal action, prosecuted by indictment, may, at anytime before trial, on the application of the defendant, be removed * * * from a court of sessions or a city court to the court of oyer and terminer of the same county, for good cause shown.” Notice of the application for such removal, which “ must be made to the supreme court, at a special term in the district ” (seo. 346), is requried to be given to the district attorney of the county where the indictment is pending, and to enable
By the Revised Statutes (vol. 3 [Qth ed.], p. 1026, see. 89, So.), “ every person against whom an indictment shall be pending in any court of sessions, may apply to any justice of the supreme court for an order to remove such indictment to the court of oyer and terminer of the county in which the same was found.” The application must “ set forth a copy of the indictment, or the substance thereof, the time when it was found, the proceedings thereon, if any, and the facts and -circumstances rendering a removal thereof expedient, and shall :be verified by affidavit.” It is then declared that (seo. 89) “the officer to whom such application is made shall grant an order that such indictment be removed to, and that the defendant therein be tried at the next court of oyer and terminer to be held in the county where such indictment was found, unless it shall appear that the application therefor was not made in due season, or that such removal will produce any injurious delay, or in any way tend to prevent a due prosecution of such indictment.”
By a comparison of the provisions of the Revised Statutes, which have just been given, with those of the Code, it will be observed that there is an important difference between them in one particular. The latter requires for the removal, “good
It was stated by counsel on both sides, upon the argument of this motion, that the point now to be considered has never been decided in this state. The reason for the absence of judicial precedent to guide us, is doubtless to be found in the fact already stated, that prior to the year 1878, when the Revised Statutes were amended in this particular, an application of this character was to be granted unless it could be refused for the reasons which the statutes themselves specify.
That this case will involve difficult legal questions (see cha/p. 539, Loads of 1853 ; cha/p. 742 of Laws of 1869; art. 15 of the Constitution) it is easy to see. That the political and official standing of the accused (he was, at the time of the alleged act, a member of the senate of this state), the act charged, and the warm and bitter feelings which the allegation of its perpetration caused, have magnified this cause far above and beyond an offense committed under other and different circumstances must also be conceded; and if any case of sufficient importance can be supposed, in which the relief asked should be granted, then the present is that case..
It is said, however, that this motion should be refused because the notice was one to be made at special term, and not to a judge of the court, as the Revised Statutes provide. There is, as in the preparation of the moving papers the attorney who drafted them relied upon the Oode, and not the Revised Statutes, this technical difficulty. As, however, a special term must be held by a single judge, and as the judge who in fact held it, when the motion was made, is the identical one specified in the notice of motion before whom at special term it would be made, the objection must be disregarded. A refusal on any such ground as this would only tend to delay. The papers served contain all that the Revised Statutes require, and as the notice is of a motion “ before Mr. justice Westbrook,” the addition thereto “ at the next special term,” etc., may be rejected as .surplusage.