244 A.D. 382, People ex rel. Pulko v. Murphy

Citation:244 A.D. 382
Party Name:THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN PULKO, Appellant, v. THOMAS H. MURPHY, as Warden of Clinton Prison, Dannemora, N.Y. , Respondent.
Case Date:May 08, 1935
Court:New York Supreme Court Appelate Division, Third Department
 
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Page 382

244 A.D. 382

THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN PULKO, Appellant,

v.

THOMAS H. MURPHY, as Warden of Clinton Prison, Dannemora, N.Y. , Respondent.

Supreme Court of New York, Third Department.

May 8, 1935

APPEAL by the relator from an order of the County Court of Clinton county, entered in the office of the clerk of said county on the 13th day of November, 1934.

COUNSEL

Jesse Perlmutter [Fred Baum with him on the brief], for the appellant.

John J. Bennett, Jr., Attorney-General [Victor F. Boire, Assistant Attorney-General, of counsel], for the respondent.

MCNAMEE, J.

The relator was indicted by the grand jury of Cayuga county in October, 1928, charged with the crime of escape

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from Auburn Prison on the 8th day of June, 1928, to which prison he had been lawfully sentenced for felony on February 20, 1925, for a term of ten years, by the County Court of Onondaga county. The relator was arraigned in the County Court of Cayuga county under this indictment and pleaded not guilty. A jury was impaneled, the People swore five witnesses, and rested. No defense was offered in behalf of the relator; but a motion was made by his counsel to dismiss the indictment and to discharge the defendant from the accusation thereunder, and this motion was granted.

The district attorney thereafter moved that the case be recommitted to the grand jury for consideration, and an order to that effect was made.

In January, 1929, the relator was again indicted by the grand jury of Cayuga county, and was again charged with the crime of escape on June 8, 1928, from Auburn Prison, to which he had been sentenced for felony, and in which he was still lawfully confined.

The relator was again arraigned, and pleaded not guilty. And on February 11, 1929, a jury was impaneled, the People swore four witnesses, and rested. According to the clerk's minutes, no evidence was offered in behalf of the defendant, nor was any motion or request made in his behalf, except to poll the jury.

After the second trial for escape the district attorney filed an information under section 1943 of the Penal Law charging the relator with three former convictions for felony, one of which the defendant denied. Upon this issue a jury was impaneled and the People swore two witnesses. Again it appears that no evidence was offered, and no motion or request made...

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