People ex rel. Battista v. Christian

• Decision Date: 20 November 1928
• Citation: 164 N.E. 111,249 N.Y. 314
• Parties: PEOPLE ex rel. BATTISTA v. CHRISTIAN, Superintendent of State Reformatory.
• Court: New York Court of Appeals Court of Appeals

249 N.Y. 314

164 N.E. 111

PEOPLE ex rel. BATTISTA

v.CHRISTIAN, Superintendent of State Reformatory.

Court of Appeals of New York.

Nov. 20, 1928.

Habeas corpus by the People, on the relation of Patsy Battista, against Frank L. Christian, as Superintendent of the New York State Reformatory at Elmira. An order of the Special Term sustaining the writ (131 Misc. Rep. 411, 227 N. Y. S. 142) was reversed as a matter of law by the Appellate Division, Third Department (224 App. Div. 243, 229 N. Y. S. 644), and relator appeals.

Order of the Appellate Division reversed, and that of the Special Term affirmed.

Andrews, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department.

Dennis W. Hunt, of Syracuse, for appellant.

Albert Ottinger, Atty. Gen. (Almon W. Burrell, Asst. Atty. Gen., of counsel), for respondent.

Urbane C. Lyons, Dist. Atty., of Binghamton (Frank L. Wooster, of Binghamton, of counsel), amicus curiae.

O'BRIEN, J.

The Constitution of this state, by article 1, § 6, provides: ‘No person shall be held to answer for a capital or otherwise infamous crime * * * unless on presentment or indictment of a grand jury.’ Relator was charged with burglary, which is an infamous crime. He was held to answer for it, but not on any presentment or indictment of a grand jury. While awaiting action by that body, he petitioned the court for a direction that an information be filed against him, and his petition was granted. Then he pleaded guilty, and was sentenced to confinement in the reformatory at Elmira. This procedure conforms with the provisions of section 222 of the Code of Criminal Procedure.

The Constitution and the statute meet in direct collision. The statute assumes to authorize the thing which the Constitution expressly forbids. The organic law decrees that no one shall be held to answer for an infamous crime until after a grand jury shall have considered the evidence against him. The legislative enactment says that an individual may, if he pleases, strip himself of a protection common to all within the jurisdiction of our government. This right, attempted to be conferred by statute, was not granted solely for the benefit of the criminal. Probably it was thought to be in the interest of the state. Doubtless the purpose of its attempted creation was to shorten procedure by inducing a criminal to forego a fundamental right, and, by swift admission of guilt, incidentally to mitigate his penalty but essentially to hasten justice. In practice, such a course is convenient. We are not dealing with policy, expediency, or convenience as viewed by the Legislature, but with public fundamental rights fixed by the Constitution. Whether the grand jury system erects a bulwark of liberty or operates as an engine of oppression is not for us to decide. In ancient times it may have formed a shield against the tyranny of the crown. Today it may serve as a check upon popular passion. Always it has been susceptible of utilization to pervert justice. Section 222 of our Code seeks to and does weaken the force of our Constitution, and, for that reason, it is void. The statute therefore adds nothing and takes away nothing. If, without its existence, the criminal possessed the right to fling away any part of the protection which the Constitution imposes upon all, neither he nor the state is strengthened or weakened by its passage. So the only question in this case is whether, irrespective of the statute the basic prohibition of article 1, § 6, is capable of waiver.

Many judicial opinions can be found in which declarations are made that constitutional rights and privileges may be waived. Most of these expressions occur in civil actions(Matter of New York, L. & W. R. Co., 98 N. Y. 447, 453;Mayor, etc., of City of New York v. Manhattan Ry. Co., 143 N. Y. 1, 26,37 N. E. 494;People ex rel. McLaughlin v. Board of Police Com'rs of City of Yonkers, 174 N. Y. 450, 456,67 N. E. 78,95 Am. St. Rep. 596), but some also appear in criminal cases (Pierson v. People, 79 N. Y. 424, 429,35 Am. Rep. 524;Diaz v. U. S., 223 U. S. 442, 32 S. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913C, 1138;People v. Gowdsky, 244 N. Y. 451, 463, 155 N. E. 737). From this mass of opinions and decisions, the rule can be deduced that waiver is not permitted where a question of jurisdiction or fundamental rights is involved and public injury would result. A privilege, merely personal, may be waived; a public fundamental right, the exercise of which is requisite to jurisdiction to try, condemn, and punish, is binding upon the individual, and cannot be disregarded by him. The public policy of the state as expressed in the Constitution takes precedence over his personal wish or convenience. Article 1, § 6, proceeds far beyond the point of conferring a mere personal privilege. Unqualifiedly, it prohibits the trial of any one charged with infamous crime except on presentment or indictment by a grand jury. Until the grand jury shall act, no court can acquire jurisdiction to try. In the most solemn and absolute language, the Constitution dictates the only method by which one can be held to answer for murder, burglary, arson, or any other infamous crime. Without the prescribed action by a grand jury, all our other tribunals are powerless to proceed. Such action is the foundation of jurisdiction.

The principle which exacts compliance with constitutional mandates and prohibitions is illustrated by many cases here and in the federal courts. Consider Cancemi v. People, 18 N. Y. 128. A prisoner on trial for murder in the first degree expressly requests, consents, and stipulates in open court that a juror be withdrawn and that the verdict be rendered by eleven jurors. Our Constitution declares that ‘trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.’ Article 1, § 2. This requirement cannot be waived. The constituent parts of the tribunal and the fundamental mode of its proceeding are not within the power of the parties. In criminal prosecutions are involved public wrongs and public rights. The state has an interest in the lives and liberties of all within its boundaries, even though some may be criminal. Accordingly, prosecutions must be conducted in substance and without essential change as the Constitution commands. A conviction otherwise obtained is a nullity. That the doctrine enforced in Cancemi's case respecting the necessity of a trial conducted according to essentials established by the Constitution may not be deemed to...