People v. Farini
| Decision Date | 03 February 1925 |
| Citation | 146 N.E. 645,239 N.Y. 411 |
| Parties | PEOPLE v. FARINI. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
John Farini was convicted of murder in the first decree, and he appeals.
Affirmed.
See, also, 239 N. Y. 539, 147 N. E. 186.
Appeal from Kings County Court.
S. J. Siegel and Edward S. Napolis, both of New York City, for appellant.
C. J. Dodd, Dist. Atty., of Brooklyn (Henry J. Walsh and James I. Cuff, both of Brooklyn, of counsel), for the People.
[1] This defendant was indicted for the crime of murder in the first degree in the County Court of Kings county. He was then arraigned, and pleaded ‘not guilty.’ Thereafter an order was made by the Supreme Court upon the application of the district attorney, without notice to the defendant, removing the indictment into that court. There he was subsequently tried and convicted. It is said that the Supreme Court had no jurisdiction to make this order, and consequently might not proceed with the trial. The claim is that under our Code of Criminal Procedure such an order may be made by the Supreme Court only upon the application of the defendant. If this be so, it reverses a practice that has been general since the adoption of the Code and that was concededly allowed before that time. To effect such a change the intention of the Legislature should be expressed in clear and unmistakable terms.
[2][3] Originally the removal of criminal actions prosecuted by indictment from one court to another was by means of the writ of certiorari. Under the English practice the application might be made by the crown for the removal from a lower court to the King's Bench without notice, in which case it was granted as a matter of right. Or it might be made by a private prosecutor or by the defendant and then cause therefor must be shown. A similar power of removal on the application of the district attorney or of the defendant was possessed by our Supreme Court, except that it may be doubtful whether the former might demand it as a matter of right. Jones v. People, 79 N. Y. 45.
In 1881 came our Code of Criminal Procedure. It is to be interpreted in view of existing practice. By it the Supreme Court was declared to have jurisdiction to try any indictment found in any County Court sent to it by the latter court ‘or which has been removed from any court into the Supreme Court, if, in the opinion of that court, it is proper to be tried therein.’ Code Cr. Proc. § 22. Were this all no question would arise. The precise method now to be used was altered. The writ of certiorari was abolished. The authority of the Supreme Court is asserted by an order. But there could be no doubt that this authority which had existed for years remained.
The Code, however, contains certain other provisions:
‘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 before trial, are abolished.’ Code Cr. Proc. § 343.
This is simply a regulation of the method of removal when the application is made by the defendant. It is not an attempt by implication to deprive the Supreme Court of the well-understood power it had always possessed where the application was made by the prosecution. Nor is it the first attempt to regulate such procedure where the motion was made by the defendant. In England it had already been done. In this state also. 2 R. S. pp. 731, 732, §§ 76-83; 3 R. S. (6th Ed.) p. 1027. The provisions contained in these statutes are not unlike the present provisions in the Code of Criminal Procedure. Yet they were not held to limit the power...
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