People v. McLaughlin

• Decision Date: 20 October 1896
• Citation: 44 N.E. 1017,150 N.Y. 365
• Parties: PEOPLE v. McLAUGHLIN.
• Court: New York Court of Appeals Court of Appeals

150 N.Y. 365

44 N.E. 1017

PEOPLE

v.McLAUGHLIN.

Court of Appeals of New York.

Oct. 20, 1896.

This is an appeal from a judgment and order of the appellate division of the supreme court in the First department, which affirmed a judgment rendered in the oyer and terminer in and for the city and county of New York, convicting the defendant of the crime of extortion (37 N. Y. Supp. 1005); also from an order of the appellate division which reversed an order of the special term, entered May 20, 1895, shortening the time for hearing the defendant's application for a change of the place of trial in this action, and which denied such application, and vacated the stay of proceedings granted, to enable the defendant to have such application heard and determined (37 N. Y. Supp. 998). The latter appeal, however, is taken upon the sole ground, and the order is appealed from only to the extent necessary to review it so far as it fails to grant to the defendant the relief to which he was entitled on the reversal of such order. Reversed.

Gray, J., dissenting. 37 N. Y. Supp. 1005 , reversed.

Edward C. James, Abram I. Elkus, and Edward E. McCall, for appellant.

Austen G. Fox and Daniel G. Rollins, for the People.

MARTIN, J.

The appellant was indicted for bribery, and also for the crime of extortion. The indictment contained five counts. The first four were for bribery, and the last for extortion. He was arraigned upon this indictment, and pleaded not guilty. Afterwards he was brought to trial thereon at an oyer and terminer held in and for the city and county of New York for the crime of extortion only. The trial commenced April 15, 1895, and continued until May 11, 1895, when the jury, being unable to agree, was discharged. The court then set the case down for a second trial, to commence on the 20th of the latter month. On May 18th the appellant served upon the district attorney notice of an application to remove the action before trial, to be heard at a special term held in and for the city and county of New York on the 3d day of June, 1895. The motion was upon the ground that the appellant could not obtain a fair and impartial trial in the city and county of New York. It was based upon the affidavit of the defendant, and voluminous papers attached to and forming a part of such affidavit, which tended to show the existence of a general prejudice against the defendant, and that he could not obtain a fair and impartial trial in the city and county of New York. There is nothing in the motion papers or record to indicate that the motion was not made in good faith, or that the defendant was guilty of any laches in making such application. Indeed, considering the volume of papers and their contents, it is evident that the defendant proceeded with diligence and in good faith. The defendant also obtained from a judge of the supreme court an order, staying the proceedings upon the indictment until the hearing and determination of his application. [150 N.Y. 372]At 7 o'clock on the morning of May 20th, the district attorney served upon the defendant's attorney an order made by Mr. Justice Andrews, requiring the defendant to show cause at a special term to be held by Mr. Justice Ingraham, at 10 o'clock a. m. of the same day, why the time for hearing the defendant's application should not be changed from June 3d to May 20th, and the motion be then and there forthwith made. This order was based upon an affidavit of the district attorney, which, without denying any of the facts set forth in the affidavit of the defendant and the accompanying papers, stated what proceedings had already been had in the action; that he believed a postponement of the trial would prejudice the public interest; and that he would be ready to proceed with the argument of the motion to remove the action before trial on the 20th of May, at 11 o'clock a. m. At the time mentioned in the show-cause order, the defendant appeared specially for that purpose, and filed objections to the hearing of the motion, which, among others, were that the proceeding for the change of the place of trial was a special proceeding under the statute, and that the supreme court had no power or jurisdiction over it, except such as is given by statute; that the order made by Mr. Justice Andrews was null and void; that he had no power or jurisdiction to make it; that the defendant desired to serve other papers to be used on the application to change the place of trial, that were not, and could not have been, previously prepared; that his counsel could not be present, as he was engaged in the argument of cases in the court of appeals; and several other grounds apparently sufficient to show that the motion could not be properly made at that time. The defendant then asked to postpone the hearing of that motion, owing to the absence of his counsel. This the court denied. It then directed that the motion on the order to show cause should proceed. The court immediately ordered the defendant to make the motion to change the place of trial then and there. This he declined to do, insisting that he had the statutory right to have it heard at the time for which it was noticed, and that for other reasons stated, which seemed to be sufficient, he was unable to make it at an earlier time. The court then, without any application by the defendant or in any other way having that motion before it, denied the defendant's motion to change the place of trial. After denying the motion, the court also vacated the stay of proceedings granted by Mr. Justice Pratt, with any notice to the defendant of an application for that purpose. Upon the same day, the defendant appealed from the order of the special term to the general term in the First department.

Immediately after the entry of the order granted by the special term, the court of oyer and terminer, which had been awaiting the result of the people's motion, ordered the second trial of this action to proceed. Thereupon before any proceedings were had in the action, the defendant called the attention of the court to the motion papers and stay of proceedings which had been indorsed thereon and filed on the preceding Saturday, and objected to the court's proceeding with the trial of the action because that application was pending and the trial stayed. A certified copy of the order of the special term was then procured and filed, and thereupon the defendant's objections were overruled, to which he duly excepted. The defendant's counsel then objected to proceeding with the trial, upon the ground that the order of the special term was illegal and void; that the court had no power to grant it; that the stay of proceedings was in full force and effect; and that the court had no jurisdiction to proceed with the trial in violation of such stay, or to deprive the defendant of his statutory right to have his application for a change of the place of trial heard and determined as provided by law. The court overruled these objections, and the defendant excepted. The defendant then moved for a postponement of the trial, because his senior counsel was engaged in the court of appeals, and read an affidavit in support of that motion. The facts stated in that affidavit were not denied or contradicted, but the court denied the motion, and an exception was taken by the defendant. The following Friday, May 24th, before any juror was sworn, the defendant's counsel, having returned, objected to the swearing of the jurors until the defendant's motion for a change of the place of trial was regularly heard and decided, at the time and place for which it had been noticed. This objection was made upon all the grounds stated in opposition to the motion at special term. The court overruled it, and the defendant excepted. After the jury was selected, but before the case was opened or any evidence given, the defendant's counsel again moved to discharge the jury and postpone the trial, on the ground that proceeding with the trial was in violation of the stay, in derogation and denial of the defendant's right to make an application to change the place of trial; that the order of the special term made May 20th was without jurisdiction, and in violation of the defendant's right, and gave no authority to the oyer and terminer to violate such stay or proceed with the trial; and that an appeal from such order was pending, and no further proceedings should be taken in the action until the hearing and determination of that appeal. The court denied that motion, and the defendant excepted.

The appellant's first contention is that, upon the reversal of the order of the special term, the appellate division should also have reversed or set aside the intermediate trial and proceedings which resulted in the defendant's conviction. The appellate division unanimously reversed the order, not only to the extent that it denied the defendant's motion to change the place of trial, but also so far as it set aside the stay of proceedings. From that order no appeal has been taken to this court, except so far as necessary to a review of its propriety in not setting aside the proceedings and trial, which took place intermediate the time when such order was granted and when it was reversed. The appellant had a right to apply for a removal of the action to another county before trial, upon the ground that a fair and impartial trial could not be had in the city and county of New York. The right to remove the place of trial from one county to another, where a fair and impartial trial cannot be had in the county where the indictment is pending, has long existed. It existed at common law, and was subsequently incorporated into the statutes of the state. The provisions of the Code of Criminal Procedure upon the subject have been evolved from previous legislation, and, so far as they extend, now contain the rule of law governing such an application. As they stood at the time of the trial, so far as material, they...