203 Misc. 441 | New York County Courts | 1952
Defendant moves to set aside a judgment under which he has previously been convicted of robbery first degree, grand larceny first degree, and assault second degree, upon the ground that his said conviction was procured by perjured testimony, knowingly employed by the District Attorney as part of a scheme and contrivance to bring it about. The alleged perjury is said to have been committed by a witness who was originally indicted for the crime himself, but who thereafter testified
The defendant further moves for a jury trial of the factual issues arising upon this motion. His contention is that the motion is in the nature of error coram nobis; that there was a right to a jury trial of factual issues arising on the ancient writ at common law, and that such right has been preserved by the various Constitutions of this State.
It seems clear that there was a right to trial by jury of an issue of fact raised by the common-law writ of error coram nobis. (Jaques v. Cesar, 2 Saund. 100 [Note]; 2 Tidd on Practice [1st Am. ed.] 1122; Arnold v. Sandford, 14 Johns. 417, 423.)
The early view in New York was that our practice followed the English system, so far as not here altered or modified (Schuyler v. Yates, 11 Wend. 186; Fleet v. Youngs, 11 Wend. 522, 525) and that we had “ lost the name of the writ but nothing more.” (Smith v. Kingsley, 19 Wend. 620, 622.)
Upon the eventual abolition of its American counterpart in civil practice, the method of securing the relief formerly obtainable by the writ of error in fact came to be by way of motion to set aside the judgment (McMurray v. McMurray, 60 Barb. 117, 122, 125, affd. 66 N. Y. 175, 177), but the broad power of review remained. (Thurber v. Townsend, 22 N. Y. 517, 518-519
The early New York authorities on the subject involve decisions subsequent to the adoption in 1777 of our first State Constitution, and do not assume to address the question whether the former practice of trial by a jury in error coram nobis became crystallized into constitutional right. So far as can be determined, that question has not yet been decided in this State.
By article XLI of that first Constitution, it was ordained: ‘ ‘ that trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolate forever ” (emphasis supplied).
By article XXXV of the same Constitution, it was further provided: ‘ ‘ that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord, one thousand seven hundred and seventy-five, shall be and continue the law of this State ”.
The guarantee of the right to trial by jury “ in all cases in which it has been heretofore used ” is reiterated in the State Constitutions of 1821, 1846 and 1894 though expressed in different verbiage in the Constitution of 1938.
The question to which the language of the earlier Constitution gives rise was considered in Malone v. Saints Peter & Paul’s Church (172 N. Y. 269, 274) where the court observed: “ The Constitution of 1777 provided that a trial by jury, in all cases in which it has heretofore been used, shall remain inviolate
A people’s “ customs ” are such practices and usages as exist, not just in memory, but actively, in guidance of or at least influence upon their current pursuits. In the common law itself, founded as it was on a collection of maxims and customs “ of higher antiquity than memory or history can reach, * * * the goodness of a custom depends upon its having been used time out of mind so too, its doctrines depend upon “ immemorial usage ”, while the authority of its maxims “ rests entirely upon general acceptance and usage; and the only method of proving that this or that maxim is a rule of common law, is by showing that it hath been always the custom to observe it.” (1 Blackstone’s Comm. [Cooley 4th ed.], pp. 67-68; emphasis supplied.) The coincidence — between the usage upon which the common law was built and upon which the constitutional preservation of a right to trial by jury was based — is striking. It seems quite apparent that what the constitutional framers sought to preserve were fundamental and familiar rights which had been exercised customarily in the Colony. Conspicuous among them, the rights of prosecution by indictment and of trial by jury, had been contended for from the Colony’s infancy. (“ Charter of
The refusal of grand and petit juries to knuckle under to the Crown had been met with the creation of Admiralty Courts and prosecution by information. The contest saw an unyielding judge removed and counsel' summarily disbarred for challenging the authority of an arbitrary court. It saw too a petit jury defeat an attempt by Crown officers to stifle freedom of the press. The history of the Colony emphasizes that the rights sought to be preserved by the Constitution were those for which a conflict of arms had been waged and won — and in the forefront of those rights was the basic right to trial by jury, of factual issues, upon the determination of which personal and property rights depended. Nowhere has there been found any such custom, long in use in the Colony, as would invite a fair conclusion that the constitutional architects had any such refinement as trial by jury in coram nobis in mind, and intended to incorporate it into the legal structure of the new State. Indeed, we are informed by a distinguished authority that the writ was 6 ‘ hoary with age and even obsolete in England before the time of Blaekstone,” and that by his day it had fallen so completely into desuetude as not even to have merited his notice (Fuld, J. cc The Writ of Error Coram Nobis ”, N. Y. L. J., June 5, 1947, p. 2212, col. 1). In America, before the Revolution, Blaekstone’s work is said to have been read more than any other law book. (C. J. Hendry Co. v. Moore, 318 U. S. 133, 151.)
No controlling authority has been found which suggests otherwise. The constitutional language is clear and the courts have given it effect. The test of usage has been applied consistently to deny the right of trial by a “ common law jury ” of twelve, in cases where it had not been used prior to the adoption of the Constitution. (Malone v. Saints Peter & Paul’s Church, 172 N. Y. 269, 274, supra; People ex rel. Murray v. Justices, 74 N. Y, 406, 407-408; Sheppard v. Steele, 43 N. Y. 52, 57; People ex rel. Witherbee v. Supervisors, 70 N. Y. 228, 234-235; Batzel v. Batzel, 54 How. Prac. 139, 142-144; Matter of Smith, 10 Wend. 449, 457; Murphy v. People, 2 Cow. 815, 816-817 and note, 819-820;
There seems to be that about the resurrection of the ancient writ óf error coram nobis which has prompted many to abandon restraint in utterance of their opinions on the subject. So here a brief lapse from that same virtue may be permissible in connection with whatever views may prevail elsewhere as to the right of trial by jury in error coram nobis. Our first Constitution made usage within the Colony of New York the criterion. I find myself in complete sympathy with the view of the scholarly author who is of the thought that u where the common law reception statute or constitutional article makes specific reference to the state of the law in the Colony, this calls for an inquiry into the facts, which, once established, can be argued as a once applicable rule of law. Such inquiry is not concluded by forays into the pantries of other provinces. The Judge who would accept in lieu of a documented statement of Colonial practice in his own jurisdiction the mince of the institutional historians or the fragile meringues of social historians, does the law no service.” (Goebel and Naughton, “ Law Enforcement in Colonial New York ”, Introduction, XXXVI.) ■
Neither the research of counsel nor that of the court has unearthed a documented instance of trial by jury, of the factual issues arising from error coram nobis within the Colony or State
In the absence of a reasonably clear statutory practice, or of a demonstrated “ custom long in use ” in the Colony or infant State, my conclusion is that there is no constitutional right to a jury trial of factual issues in proceedings which are a modern counterpart of the ancient writ. The remarks of the Court of Appeals in recent opinions indicate an accord with this conclusion, though, of course, not necessarily with the reasoning by which it is reached. (People v. Richetti, 302 N. Y. 290, 298; People v. Langan, 303 N. Y. 474, 480.)
Insofar as the moving party prays for an order directing that a hearing be had and that testimony and proof be taken thereon before the court, the said motion is granted. In all other respects, the motion is denied. Settle order on notice.
Cf. p. 317, “ The obvious meaning * ’* * is, in ‘ use at the time of the adoption of the Constitution