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out leave of the court. (w) (2) If he wishes to try the defendant on a second indictment, for the same offense embraced in the previous one, he must move to quash the first, before he can do so.

Motion to quash, by defendant.] When the application is made on the part of the defendant, the courts almost uniformly refuse to quash an indictment, where it appears to be for some enormous crime, such as treason or felony, (2) forgery; perjury and subornation. (y) They have also refused to quash indictments for cheats ; (2) for selling flour by false weights; (a) for extortion ;(6) for not executing a magistrate's warrant ; (c) and in many other cases. (d) (3)

The application, if made on the part of the defendant, must also be before plea pleaded. (e) (20) 2 R. 8., 728, $ 54; superseded by Code Cr. Pio., 672.

(0) 5 Mod., 13. (Zi Com. Dig., Indictment (H.)

(C) 2 Stra., 1211. (y) i Salk., 372. 1 Sid., 54. 1 Vent., 370. 3 (d) Sce Matt. Dig., 284. Dowl & Ry , 621.

(e) Fost., 231. Holt, 684. 4 St. Tr., 677. (2) 6 Mod., 42.

(a) 3 Burr., 1841.

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(2) But by the Code of Criminal Procedure the entry of a nolle prosequi is abolished, and an order to dismiss the action is substituted.. ($$ 670, 671, 672.)

(3) An indictment will be quashed if it clearly appear to have been found without sufficient evidence to support it. (People v. Restenblatt, 1 Ab. Pr., 268.) But it will not be quashed on the ground of the insufficiency of the evidence before the grand jury, if they had testimony before them on which they could fairly act. (People v. Strong, 1 Ab. Pr. (N. 8.), 244.). The court will not determine the sufficiency of an indictment upon a motion to quash. (People v. Davis, 56 N. Y., 95.) It is no ground for quashing an indictment that the list from which the grand jury was drawn contained one name less than the number required by statute. (People v. Harriot, 3 Park., 112.) Nor will the court quash an indictment because found without a preliminary hearing, if necessary to save the statute of limitations. (People v.

Strong, 1 Ab. Pr. (N. S.), 244.) On a motion to quash, affidavits can not be read to contradict or explain the allegations in the indictment, without the consent of the district attorney. (People v. Clews, 57 How., 245.) On such a motion it is not necessary that the defendant should be present in court during the argument. (People v. Vail, 57 How., 81; S. C., 6 Ab. N. C., 206.)

It is no ground either for quashing an indictment, or discharging the person from arrest, that before the finding of an indictment and after the issuing to the officer, by a police justice, of a warrant for his arrest, by an agreement between the officer and some person in Canada, the prisoner was forcibly brought from Canada to the line of this state, and there delivered to such officer, in arrest under the warrant. (People v. Howe, 1 Sheld., 581.)

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[* 350 ]

* CHAPTER VIII.

REMOVAL OF INDIOTMENT BEFORE TRIAL OR JUDGMENT.

This sort of proceeding regulated in this state by statute. The methods of removal, under the Revised Statutes were, either by order of the court, or by writ of certiorari.

But the entire article of the Revised Statutes, relating to the sub ject, and all statutes in pari materia, were repealed by the Code of Criminal Procedure, and the following provisions substituted :

Existing writs and proceedings to remove indictments before trial.] All writs, and other proceedings heretofore existing, for the removal, upon the application of the defendant of criminal actions prosecuted by indictment, from one court to another, are abolished. (Code Cr. Pro., § 343.)

When removal allowed, before trial.] A criminal action, prosecuted by indictment may, at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter (ch. 8, title V), in the following cases :

1. From a court of sessions or a city court, to the court of oyer and terminer of the same county, for good cause shown;

2. From a court of oyer and terminer or sessions, or a city court, to the court of oyer and terminer of another county,.on the ground that a fair and impartial trial can not be had in the county or city where the indictment is pending. ($ 344; People v. Sessions, 62 How., 415.)

After trial ; new trial necessary.) If one or more trials be had, and a new trial is necessary, either by reason of the discharge of a jury without a verdict, or of the granting of a new trial, the removal may be allowed at any time before the new trial. . (§ 345.)

Application for.] The application for the order of removal must be made to the supreme court, at a special term in the district, upon notice of at least ten days to the district attorney of the county where the indictment is pending, with a copy of the affidavits, or other papers on which the application is founded. ($ 346.) What affidavits must contain. (Peo. v. Bodine, 7 Hill, 147; Peo. v. L. I. R. R. Co., 4 Park., 602 ; Peo. v. Harris, 4 Den., 150; Peo. v. Baker, 3 Park., 181; Peo. v. Sammis, 3 Hun, 560.)

Stay of trial.] To enable the defendant to make the application, a judge of the supreme court may, in his discretion, upon good cause shown by affidavit, make an order staying the trial of the indictment, until the application can be made and decided. (347.)

Decision. When an application for an order to stay the trial is made to the supreme court, it must indorse its decision on the affidavits or other papers presented, and cause them to be immediately filed with the clerk of the court in which the indictment is pending. (§ 348.)

Only one to be made.] If the applicatioh for an order to stay the trial has been made before one judge and denied, a similar application can not be made to another judge. (R 349:)

A violation of § 349 is punishable not only as a misdemeanor, but as a contempt of the court in which the indictment is pending; and that court must vacate an order of removal made in violation thereof. ($ 350.)

Proceedings on an order of removal.] If the supreme court order the removal of the action, a certified copy of the order for that purpose must be delivered to and filed with the clerk of the court where the indictment is pending; who must transmit the same, with the pleadings and proceedings in the action, including all undertakings for the appearance of the defendant or of the witnesses, or a certified copy of the same, to the court to which the action is removed. ($ 351.)

If the defendant be in custody, and the removal be to the court of oyer and terminer of another county than that where the indictment is pending, the order must provide for the removal of the defendant, by the sheriff of the county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed; and he must be forthwith removed accordingly. (§ 352.)

Filing order for removal.] An order for the removal of the action is of no effect unless a certified copy thercof be filed, as required by section 351, before a juror is sworn to try the indictment. When thus filed, the court to which the action is removed must proceed to trial and judgment therein. ($ 353.)

Remanding indictment, &c.] Whenever any indictment shall be removed into the supreme court, or any person indicted shall be brought into that court by habeas corpus, the justices thereof may remand such person, and such indictment, to the proper county, where such indictment may be tried; and the court of oyer and terminer, or court of general sessions, to which any such indictment shall be so remanded, shall proceed thereon in the same manner as if such indictment had not been removed into the supreme court. (3 R. S., 7th ed., 3574.)

[ * 352 ]

* CHAPTER IX.

TRIAL OF INDIOTMENT.

1. IN WHAT COURT TO BE TRIED. 2. IN WHAT COUNTY TO BE TRIED. 3. JURY, AND CHALLENGES. 4. DEFENDANT TO BE PRESENT. 5. RIGHT TO COUNSEL. 6. WITNESSES. 7. DISCHARGING ONE OF SEVERAL DEFENDANTS. 8. SEPARATE TRIALS. 9. ENTERING A NOLLE PROSEQUI; DISMISSAL OF ACTION. 10. COMMISSIONS TO EXAMINE WITNESSES ABROAD. 11. EXAMINING WITNESSES CONDITIONALLY. 12. COMPROMISING OFFENSES. 13. LETTING ACCUSED TO BAIL. 14. EXCEPTIONS BY DEFENDANTS, 15. PUTTING OFF TRIAL. 16. NEW TRIAL.

1. In what court to be tried. INDICTMENTS can only be tried in the oyer and terminer; in the "city courts," viz. : The city court of Brooklyn; the superior court of Buffalo ; the recorder's court of Utica; the recorder's court of Oswego, and the mayor's court of Hudson ; courts of sessions in counties other than in New York; and the court of general sessions in the city and county of New York,

The above courts are, by the Code of Criminal Procedure, declared to be the courts of justice in this state having original criminal jurisdiction. (8 11.) (See also $$ 22, 26 to 35, 39, 41, 51, 56.)

2. In what county to be tried. Formerly, all issues of fact joined upon any indictment were required to be tried by a jury, in the county where such indictment was found, unless for special causes the supreme court should order an indictment removed into that court, to be tried in some other county. (a) (1)

When it appears that an impartial trial can not be had in the county where the offense is laid, the court will order a suggestion of this fact to be entered on the record, and a venire is then awarded to the sheriff of another county. (6) And such suggestion can not be made without special leave obtained from the court. A rule directing a criminal case, removed into the supreme court by certiorari, (a) 2 R. S., 733, 4 1.

(6) 7 Cowen, 108. 2 McCord, 382. 1 Chit. Cr. L., 201.

(1) ISSUES OF FACT, AND MODE OF TRIAL.

The Code of Criminal Procedure contains these provisions respecting issues of fact, and the place of trial thereof:

Issue of fact, defined. -An issue of fact arises, 1. Upon a plea of not guilty; or 2. Upon a plea of a former conviction or acquittal of the same crime. (S 354.)

How tried.]-An issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed, by order of the supreme court, into the court of oyer and terminer of another county, as provided in the second subdivision of section 344. (That is “ from a court of oyer and terminer or sessions, or a city court, to the court of oyer and terminer of another county, on the ground that a fair and impartial trial can not be had in the county or city where the indictment is pending."] (355.)

For libel.)-Section 138 directs as to the county in which an indictment for libel shall be tried, and provides for changing the place of trial in such cases.

Changing place of trial.]-Courts of oyer and terminer shall have the same power to change the place of trial upon any indictment pending therein as the supreme court now has to change the place of trial in civil actions; and when the place of trial shall be so changed, the indictment shall be deemed to be pending in the court of over and terminer of the county to which the place of trial has been so changed, and such court may proceed to try the same and render judgment thereon. (Laws of 1859, ch. 462; 3 R. S., 7th ed., 2569.)

Whether this section is still in force ? Quære. See Code Cr. Pro., § 22, sub. 9.

Appearance.}-If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel; but if the indictment be for a felony, the defendant must be personally present. (Id., S 356.)

Preparation for trial.]—After his plea, the defendant is entitled to at least two days to prepare for his trial, if he require it. (Id., § 357.)

Postponement on account of absent witnesses. People v. Vermilyea, 7 Cow.,

369. Affidavits therefor, what to contain. Broad's case, 3 C. H. Rec., 7; Peo. 0. Wilson, 3 Park., 199; Peo. v. Horton, 4 ib., 222. No exception lies to refusul to postpone trial for witnesses. Eighmy v. Peo., 79 N. Y., 546.

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