Imágenes de páginas
PDF
EPUB

introduce affidavits and other evidence in opposition to such application.1

§ 76. CONTENTS OF THE APPLICATION.

Such application shall 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.2

§ 77. WHEN ORDER TO BE GRANTED.

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 lead to prevent a due prosecution of such indictment.3

§ 78. RECOGNIZANCE THEREON.

Before granting any such order to any defendant not being in actual confinement, such officer shall take from such defendant a recognizance, with sufficient sureties, in such penalty as such officer shall direct, conditioned that the person indicted shall appear at the next court of oyer and terminer to be held in the county where such indictment was found, and at such other time as such court shall appoint, and if no plea shall have been made to such indictment, that he will plead to the same, and that he will stand trial upon the issue joined or which shall be joined thereon, and that he will not depart such court of oyer and terminer without leave.1

§ 79. FILING THE RECOGNIZANCE AND DELIVERY OF THE ORDER. No such order for the removal of an indictment shall be effectual in the case of any defendant not being in actual confinement, unless a recognizance taken, as hereinbefore directed, be delivered at the same time with such order, and be filed with the

'Laws 1846, ch. 142, § 3; 2 R. S., 710, § 37.

'2 R. S., 732, § 87.

[blocks in formation]

clerk of the court, nor unless such order be delivered before any judgment rendered on such indictment, and before any juror shall be sworn to try such indictment.1

§ 80. OF THE REMOVAL OF INDICTMENTS FROM THE COURT OF OYER

AND TERMINER TO THE SUPREME COURT BEFORE TRIAL.

The removal of indictments before trial from the court of sessions to the court of oyer and terminer, as we have already seen, is by a verified application and order thereon of a Supreme Court justice. Should it become necessary to remove an indictment pending in the court of oyer and terminer, before trial, into the Supreme Court, the removal is effected by a writ of certiorari, and no such certiorari shall be effectual unless allowed by a justice of the Supreme Court, and no other officer has authority to allow such writ.2

A certiorari to remove a criminal action from the oyer and terminer to the Supreme Court may issue at the instance of the district attorney, as well as on application of the defendant.3

§ 81. RECOGNIZANCE UPON SUCH CERTIORARI.

Before allowing any writ of certiorari to remove an indictment from any court of oyer and terminer, the officer to whom application for such allowance shall be made shall take from the defendant a recognizance, with sufficient sureties, and in such penalty as such officer shall direct, conditioned that the defendant prosecuting such certiorari will appear at the return day thereof in the Supreme Court and plead to such indictment, if issue be not already joined thereon, and will not depart such court without its leave, and that he will obey the orders and rules of such court in respect to the trial of such indictment, and the judgment and all other proceedings thereon.*

§ 82. WHEN SUCH RECOGNIZANCE NOT REQUIRED.

Whenever any indictment shall be pending in any court of oyer and terminer, for the crime of treason against the people of this State, or of murder, or of arson in the first degree, and the per

12 R. S., 732, § 90.

22 R. S., 732, § 92.

Peo. v. Baker, 3 Abb., 42; 3 Park., 181; Vide 15 Barb., 153.

[blocks in formation]

son indicted is in custody, a writ of certiorari to remove the same into the Supreme Court may be allowed by a justice thereof, without taking any recognizance for the appearance of such person in said court.1

§ 83. PROCEEDINGS, AFTER REMOVAL INTO SUPREME COURT. Every indictment so removed shall be carried down for trial at the proper circuit court by the district attorney of the county in which the same was found, in the same manner in all respects as issues joined in the Supreme Court in civil cases, and the same proceedings, so far as they shall be applicable, shall be had thereon.2

Whenever an indictment is removed from a court of oyer and terminer, or any other court, into the Supreme Court, and a conviction is had thereon at a circuit court, judgment may be rendered thereon by such circuit court, or any other circuit court which may be held in the same county, with the same effect as a court of oyer and terminer may render judgment upon a conviction had therein.3

Where an indictment has been removed into the Supreme Court by certiorari before trial, it must be tried at the circuit court, like other issues pending in the Supreme Court, and not at the oyer and terminer.4

But where a criminal cause is removed by certiorari into the circuit court, the defendant is obliged to proceed to trial without waiting for any rule, and no notice of trial is necessary. A neglect to try is a forfeiture of his recognizance, but if there be good reasons for postponing his trial, a new recognizance may be entered into."

§ 84. OF CHANGING THE PLACE OF TRIAL.

It may sometimes happen that a fair and impartial trial cannot be had in the county where the indictment was found, and it may become expedient to have the trial take place in some other locality, where the minds of the persons who are likely to serve

'Laws 1847, ch. 12.

2 R. S., 733, § 94.

'Laws of 1859, ch. 462, § 1, p. 1074.

Peo. v. Rulloff, 3 Park., 401.

Peo. v. Winchell, 7 Cow., 160.

as jurors upon the trial of the indictment, are unprejudiced and their judgment unbiased.

The application is made upon motion in the usual manner, by affidavits, but the venue will not be changed in a criminal case upon affidavits expressing mere belief that the prisoner cannot obtain a fair and impartial trial in the county where the indictment was found, but the affidavits must set forth the facts and circumstances so that the court may judge whether the application is well founded; and the allegation that a fair and impartial trial cannot be had, must be clearly established, or the venue will not be changed.'

The venue in a criminal case may be changed on the motion of the district attorney as well as the defendant, if it appears that a fair and impartial trial cannot be had in the county where the indictment was found. There is no fixed rule defining what shall or shall not be received as proof of the fact that such trial cannot be had, and the venue may be changed, though there has been no actual experiment made by way of trying the cause, or even empanneling the jury in the county where the venue is laid.3

Where the indictment is against several persons, and enough is shown on the part of the prosecution to make a change of the place of trial proper as to one defendant, the change will be made as to all the defendants, although it is a case in which every defendant is entitled to a separate trial.4

And where it appears in opposition to such application that the defendant's witnesses are poor, and unable to bear the expenses of a journey to another county, and that the defendants are also destitute of property, the court may require as a condition to changing the place of trial, that the district attorney procure some arrangement to be made by which the county in which the indictment was found, shall pay the necessary expenses of the indigent witnesses subpoenaed on behalf of the defendants, and attending at any court in which the trial shall not be postponed at their instance.5

That a fair and impartial trial, by any means within the reach of the law, cannot be had in the county where the venue was

[blocks in formation]

laid, is a sufficient reason for changing the place of trial in a criminal case. In deciding upon such application the court should be governed by the facts shown, and not by the mere impressions or conclusions of the parties and witnesses, and it is not indispensable, to a change of venue in a criminal case, that there should have been an ineffectual attempt to obtain a jury in the county where the venue was laid.1

Formerly, in order to make a motion to change the venue upon the trial of an indictment, it was necessary, as a preliminary matter, to remove the indictment from the court where it was pending into the Supreme Court, by a writ of certiorari;2 the statute declaring that the indictment should be tried in the county where found, unless for special causes the Supreme Court should order an indictment removed into that court to be tried in some other county; in which case the Supreme Court, at a special term thereof, had power to order the trial to be had in some other county. But by a late statute, courts of oyer and terminer 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 oyer 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."

5

If the indictment should be pending in the court of sessions and triable therein, a preliminary motion should be made to send the same to the next court of oyer and terminer to be held in the county, for the purpose of making the application in the oyer and terminer to change the venue," and in case the court of sessions should refuse such application then an application should be made to a Supreme Court justice to remove the indictment into the oyer and terminer by order," and the motion to change the venue, be made in said last mentioned court.

1 Peo. v. L. I. R. R., 4 Park., 602.

• Vide ante.

3

2 R. S., 733, § 1; Peo. v. Barker, 3 Park, 181; 1 Hill, 179; 7 Hill, 147; Peo. v. Rulloff, 3 Park, 401.

• Peo. v. Barker, 3 Park, 181.

Laws 1859, ch. 462, p. 1074. 2 R. S., 209, §§ 6, 7.

Ante.

« AnteriorContinuar »