People v. Shea

• Decision Date: 08 October 1895
• Citation: 147 N.Y. 78,41 N.E. 505
• Parties: PEOPLE v. SHEA.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 78

41 N.E. 505

PEOPLE

v.SHEA.

Court of Appeals of New York.

Oct. 8, 1895.

Appeal from court of oyer and terminer, Rensselaer county.

Bartholomew Shea was convicted of murder in the first degree, and appeals. Affirmed.

John T. Norton and Galen R. Hitt, for appellant.

Thomas S. Fagan and George Raines, for the People.

PECKHAM, J.

The defendant, having been convicted of the crime of murder in the first degree at an extraordinary term of a court of oyer and terminer held in the city of Troy, has, by appeal, brought the record of his trial before this court for review, pursuant to subdivision 8 of section 485 and sections 517 and 528 of the Code of Criminal Procedure. There has been imposed, by the sections of the Criminal Code above mentioned, a very arduous duty upon this court. We act not only in the capacity of an ordinary appellate tribunal, reviewing errors of law pointed out by exceptions duly taken, but if satisfied that the verdict is against the weight of evidence or against law, or that justice requires a new trial, it is the duty of the court to grant it, whether any exception shall have been taken, or not, in the court below. The duty imposed upon us is that of reading the whole evidence in the case of every conviction of murder in the first degree. The Code provides (subdivision 8 of section 485) that the case and exceptions shall consist, among other things, of a copy of the stenographer's minutes of the trial, the result of which provision is that a large mass of evidence, frequently upon points not really disputed or disputable, is returned, all of which must yet be perused before the court can properly come to a conclusion in the case. It seems to us that a practice might be provided by the legislature, which, while retaining all that is now sought for in an appeal to this court, would yet restrain within some reasonable limits the printing of a vast mass of prolonged examinations and cross-examinations, filled with repetitions and immaterial matter, and set forth by question and answer. The case now before us is an apt illustration of the vice of this kind of practice. Ten thousand folios, embracing some 2,000 printed pages of evidence, compose the record, exclusive of some 300 pages of examination of jurors, no question in regard to whom was raised or argued in this court. Taking all this mass of evidence, and printing it by question and answer, with its innumerable and everlasting repetitions of the same thing said in the same way, does no good to any one, and at the same time makes the reading a burden which ought not to be imposed upon the court. The evidence should, as it seems to us, be placed in the record, and the case settled by the trial judge, as in other cases, and not more than the material evidence ought to be returned, and, except in special cases, the evidence should be in a narrative form. Notwithstanding this great mass of evidence returned as the present law provides, the whole record has been examined and deliberated upon with that degree of care and attention which the interests at stake would naturally call for. The counsel for the defendant have argued before us several propositions, which will be now disposed of.

1. Objection was made in due time to the jurisdiction of the court to try the defendant, on the ground that it was an extraordinary court of oyer and terminer, called under the proclamation of the governor, and designated to be held on the same day for which a regular and ordinary court of oyer and terminer had theretofore been properly appointed by the justices of the supreme court; and it was asserted that there was no authority of law for organizing or holding more than one oyer and terminer in the same county at the same time. Some criticism was also made in regard to the form of the proclamation convening the extra term, in that it appointed ‘an extraordinary court of oyer and terminer’ instead of an extraordinary term of the court of oyer and terminer, as provided for by section 234 of the Code of Civil Procedure. This latter criticism is so clearly without merit that we do not feel called upon to further discuss it. The other objection is also untenable. The law provides for the designation by the justices of the supreme court of the times and places for holding the ordinary and usual special terms, circuit courts, and courts of oyer and terminer in the several judicial departments of the state. Code Civ. Proc. § 232. It is then provided by section 234 that the governor may, when in his opinion the public interest so requires, appoint one or more extraordinary general or special terms of the supreme court, or terms of a circuit court, or court of oyer and terminer. He is granted power by the same section ‘to designate the time and place of holding the same.’ There is no limitation in the grant of power to the governor by reason of which he cannot designate a time and place for the holding of the court, which is the same time and place already designated by the justices of the supreme court for the holding of a regular term of the court. The statute is full and ample, and under it the discretion is vested wholly with the governor as to the occasion for appointing, and the proper time and place for holding, the extra term of the court which he convenes.

2. The defendant also moved to dismiss the indictment presented to the court on the grounds-First, that improper and unlawful influence was exercised upon the board of supervisors in the selection of the grand jury; second, that certain persons, not officers of the law, issued and distributed to each of the persons composing the grand jury list of 300 names a circular letter, advising them as to their duties, and on other matters prejudicial to defendant's rights; third, that unauthorized persons had interviews with the grand jurors composing the panel which brought in the indictment, and by such means unlawfully procured the bringing in of the indictment. The motion was based upon affidavits of the defendant and his attorney, and the only fact proved was the distribution of a circular to grand jurors reminding them of the great importance of their duties; stating some of their powers as evidenced by citations from the statute; offering to further advise them, if they would call at the headquarters of the committee, of the methods by which each grand jury could do effective work. It was added that the efforts of the committee were not for political or sectarian effect, as it was composed of Roman Catholic priests, several Protestant clergymen, and a number of prominent Republicans and Democrats. The circular was signed by the chairman and secretary of the committee, which, at the head of the circular, was designated the ‘Committee of Public Safety.’ The defendant, in his affidavit, characterized this circular in quite a variety of language; and he therein stated as a fact that it had rendered the members of the grand jury who found the indictment unfit and improper persons to perform judicial functions, or to administer justice according to law, or to see that the rights and securities guarantied by the constitution and the laws of a free country were secured to the defendant. The defendant had been confined in jail ever since the death of Ross, and the question would, of course, suggest itself as to where the defendant obtained his knowledge of the effect of the circular upon the grand jurors who listened to the evidence in the case, and, upon their oaths, alleged that he was guilty of murder in the first degree. His affidavit furnishes no light upon that subject, nor is there any given by the affidavit of his attorney. It is unnecessary to here discuss the question whether there was not some matter in the circular which, as addressed to possible and prospective grand jurors, it would have been better to have omitted. It is the duty of the court to charge the grand jury, and to explain the duties of the grand jury in such manner and to such extent as, in its discretion, is deemed best. Whatever the contents of the circular may have been, some prejudice to the defendant must result, or such facts be proved that an inference of prejudice could justly be drawn therefrom, before the court would be called upon to interfere in the way suggested by this motion, even if it had the power to dismiss on such ground. We here assume that the law gives to this court jurisdiction to review the determination of the court below upon this point, which we are not at all sure of, but which it is not necessary here to decide, because we are of the opinion that the court below decided the questions correctly. There was not a particle of proof that any man was on the panel who was not a legally constituted juror, fulfilling in every respect all the requirements of the law. There was not even an allegation that the evidence given before the jury was incompetent in its nature, or insufficient, if believed, to warrant and call for the indictment which was found. There was absolutely no ground set forth which was sufficient in law to justify the court in dismissing the indictment, and the defendant has no ground of complaint based upon the denial of his motion.

3. The defendant then made a motion to postpone the trial, based upon an affidavit of his attorney. The motion was denied, and, as we think, properly, although here, also, it is doubtful if we have any jurisdiction to review the decision of the court on this question. The counsel for the defendant did not assert that there was any absent witness, and, as the learned trial justice said, the motion seemed to be based upon the suggestion that the counsel wanted time, and that it was not customary to try an indictment for so grave an offense fo soon after it was found. The decision of the court was so plainly right as to require no discussion.

4. The counsel for defendant appeals to us for a new trial upon the general merits of the case, and on the...