People v. Glen

CourtNew York Court of Appeals
Citation66 N.E. 112,173 N.Y. 395
PartiesPEOPLE v. GLEN.
Decision Date10 February 1903


Appeal from supreme court, appellate division, Fourth department.

William J. Glen was convicted of the crime of embracery, and from a judgment of the appellate division (71 N. Y. Supp. 893) affirming the same, he appeals. Affirmed.George Raines and Willard A. Glen, for appellant.

Charles T. Ennis, for the People.


On the 5th day of February, 1898, the defendant was indicted by a grand jury of Wayne county for the crime of embracery under section 75 of the Penal Code, which, so far as it is applicable to the case at bar, provides that ‘a person who influences or attempts to influence improperly, a juror, in a civil or criminal action or proceeding, or one drawn or summoned to attend as such a juror * * * in respect to his verdict, judgment * * * or decision, in any cause or matter pending, or about to be brought before him, in any case, * * * is guilty of a misdemeanor.’ The indictment charges, in substance, that on or about the 5th day of February, 1898, the defendant did attempt to improperly influence, in respect to his decision and judgment in a certain cause and matter pending and about to be brought before him, one Abram Weed as a member of the grand jury theretofore summoned and about to be convened at the courthouse in and for the county of Wayne on the 7th day of February, 1898. The indictment then proceeds with a detailed statement of the particulars of the offense, and concludes with the charge that the defendant then and there well knew that said Abram Weed had been theretofore drawn and summoned as such grand juror, and that the cause and matter respecting which the alleged improper influence was exerted was then pending and about to be brought before the said Abram Weed and his associates as a grand jury. After the indictment was found, it was sent to the Wayne county court for trial. The case was tried and submitted to the jury under a charge-to which no exception was taken-that is now presented for review. The alleged error of the trial court in its charge upon the subject of proof of defendant's good character was discussed by appellant's counsel in this court, but, as no exception to this portion of the charge was taken at the trial, it cannot be considered here.

On the 28th day of March, 1898, the defendant was convicted of the crime for which he was indicted. Thereupon he appealed to the appellate division, which sustained the judgment of conviction by a divided court. Among other questions considered by that court was the one whether the evidence was sufficient to sustain the conviction. A majority of the court held that it was. As we have no jurisdiction to pass upon the weight of evidence, the decision of the appellate division upon that branch of the case is final. We cannot say there is no evidence to sustain the judgment. There are other questions, however, which we are called upon to review. After the defendant had been arraigned in the county court, he demurred to the indictment. This demurrer was based upon grounds that are not material here. The demurrer was overruled, and thereupon the defendant moved to dismiss the indictment. The order denying the motion to dismiss the indictment recites that it was made under sections 313 and 671 of the Code of Criminal Procedure, but the affidavits upon which the motion was based clearly show that the real ground of the motion was that the learned justice of the supreme court, presiding at the term for which the grand jury above referred to hae been impaneled, had committed error in reading to them certain affidavits bearing upon the accusation brought against this defendant, and in the instructions given to the grand jury upon that subject. This is not one of the grounds specified in section 313.

Two questions are presented for our consideration upon this appeal: First. Can a motion by a defendant to dismiss an indictment against him be entertained on any other ground than those specified in section 313, Code Cr. Proc.? Second. If such a motion can be heard on other grounds, was error committed by the learned justice of the supreme court in readingaffidavits to the grand jury, and in his instructions to them relating to the accusation against the defendant of the crime of which he was subsequently convicted? Section 313 of the Code of Criminal Procedure provides that ‘The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other: (1) When it is not found, indorsed and presented as prescribed in sections 268 and 272. (2) When a person has been permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except as provided in sections 262, 263 and 264.’ Section 671 refers only to dismissals of indictments on motion of the court, or of the district attorney, and need not be discussed. The words ‘but in no other’ were added to the first paragraph of section 313 in 1897, and were evidently intended to remove all doubts which had been raised as to the meaning of said section by the conflicting decisions of the courts upon that subject. In many cases it had been held that this Code provision, as it stood prior to 1897, could not limit or interfere with the inherent power of the courts to dismiss indictments upon other substantial grounds that those enumerated in the section referred to. People v. Molineux, 27 Misc. Rep. 79,58 N. Y. Supp. 155;People v. Vaughan, 19 Misc. Rep. 298,42 N. Y. Supp. 959;People v. Thomas, 32 Misc. Rep. 170,66 N. Y. Supp. 191; People v. Clark, 8 N. Y. Cr. R. 169, 14 N. Y. Supp. 642; People v. Brickner, 8 N. Y. Cr. R. 217, 15 N. Y. Supp. 528;People v. Moore, 65 How. Prac. 177. In other cases it had been held that this section of the Code was exclusive, and distinctly negatived the rights of courts to dismiss indictments upon any other grounds than those therein enumerated. People v. Rutherford, 47 App. Div. 209,62 N. Y. Supp. 224;People v. Willis, 23 Misc. Rep. 568,52 N. Y. Supp. 808;People v. Winant, 24 Misc. Rep. 361,53 N. Y. Supp 695;People v. O'Connor, 31 Misc. Rep. 668,66 N. Y. Supp. 126;People v. Montgomery, 36 Misc. Rep. 328, 73 N. Y. Supp. 535;People v. Scannell, 37 Misc. Rep. 345,75 N. Y. Supp. 500.

That the legislature has the undoubted right to regulate mere matters of procedure in all actions and proceedings, both criminal and civil, is too well established to require either discussion or citation of authority. But it is equally clear that no legislative anactment can be permitted to deprive the citizen of any of his constitutional rights. From time immemorial our common-law courts have exercised the power to set aside and quash indictments on motion, not only for defects in form, but for irregularities and errors that were proved by extrinsic evidence. Such matters are now regulated by the provisions of the Code of Criminal Procedure, and however inconvenient, or even oppressive, they may appear to be in specific cases, the courts must apply them as best they can, for they embody the commands of the lawmaking power in matters wherein its fiat is supreme and final. But our courts have also always asserted and exercised the power to set aside indictments whenever it has been made to appear that they have been found without evidence, or upon illegal and incompetent testimony. U. S. v. Coolidge, 2 Gall. 364, Fed. Cas. No. 14,858;People v. Restenblatt, 1 Abb. Prac. 268;People v. Briggs, 60 How. Prac. 17. This power is based upon the inherent right and duty of the courts to protect the citizen in his constitutional prerogatives, and to prevent oppression or persecution. It is a power which the legislature can neither curtail nor abolish, and, to the extent that legislative enactments are designed to effect either of these ends, they are unconstitutional. The broad application of these principles to the case at bar is simple. So far as said section 313 is intended to regulate only matters of procedure which involve no constitutional rights, it is valid and must be obeyed by the courts; but, to the extent that it may destroy, curtail, affect, or ignore the constitutional rights of a defendant, it has no force and is void. People v. Petrea, 92 N. Y. 143.

The next inquiry in logical progression is whether said section 313, as applied to this case, does invade this defendant's constitutional rights. For the purposes of this discussion we shall assume, although we do not decide, that the defendant had the same right to have this charge of misdemeanor against him prosecuted by...

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