146 N.Y.S. 862 | New York County Courts | 1914
It is the contention of the defendant that by reason of his plea of not guilty to a former indictment, he has been “ put in jeopardy ” thereunder; and that, therefore, this indictment must be, set aside. He
The other case cited in support of the motion is that of People v. Rosenthal, 197 N. Y. 394. There is nothing about that case which is authority in support of this motion, except possibly the language used on page 401. The court said: “ No order to resubmit, however, was necessary, for the grand jury had jurisdiction to re-indict without it. The defendant was not put in jeopardy by the first indictment, as he was not arraigned thereunder, nor did he demur or plead thereto.” The moving party here claims that the last sentence above quoted inferentially establishes as the dictum of the Court of Appeals that if the defendant had pleaded to the first indictment it would have amounted to his having been put in jeopardy thereunder. The decision is certainly not to that effect, nor do I think the language quoted can possibly be distorted to amount to an adjudication or even a statement by the Court of Appeals that a plea to an in
• I do not find any case which holds to that effect. By the so-called “ Bill of Rights,” section 6 of article 1 of the Constitution of the state of New York, it is provided that “ No person shall be subject to be twice put in jeopardy for the same offense.” The contention of the moving party here seems to amount to the proposition that a mere plea of not guilty to an indictment amounts to putting the defendant in jeopardy nnder it. I cannot agree with this contention. Cases have proceeded much further than a plea, and for some reason have not been completed, in which it has been held that the defendant was not “ put in jeopardy.” People v. McCormack, 68 Misc. Rep. 430, 433; People v. Smith, 172 N. Y. 210; Hartung v. People, 26 id. 167; People v. Goodwin, 18 Johns. 187; Canter v. People, 1 Abb. Ct. App. Dec. 305; People v. Cignarale, 110 N. Y. 23.
The motion is, therefore, denied. .
Motion denied.