People v. Washor

• Decision Date: 19 October 1909
• Citation: 196 N.Y. 104,89 N.E. 441
• Parties: PEOPLE v. WASHOR.
• Court: New York Court of Appeals Court of Appeals

196 N.Y. 104

89 N.E. 441

PEOPLE

v.WASHOR.

Court of Appeals of New York.

Oct. 19, 1909.

Appeal from Supreme Court, Appellate Division, First Department.

Meyer Washor was convicted of assault in the third degree, and from a judgment of the Appellate Division (132 App. Div. 924,116 N. Y. Supp. 1143), unanimously affirming the conviction, he appeals. Affirmed.

Aaron J. Levy, for appellant.

William Travers Jerome, Dist. Atty. (Robert S. Johnstone of counsel), for the People.

CHASE, J.

The defendant was indicted by a grand jury drawn for and held at a term of the Court of General Sessions of the city and county of New York. He was tried in the Supreme Court, New York county, and found guilty of the crime of assault in the third degree. On an appeal to the Appellate Division from a judgment of conviction it was unanimously affirmed. Consequently the only questions for consideration in this court are questions of law.

The defendant urges that the indictment was irregularly and unlawfully removed to the Supreme Court for trial. The record before us states that ‘the appellant was arraigned upon the said indictment in the Court of General Sessions, and pleaded not guilty. The indictment was thereafter duly transferred to the Supreme Court for trial.’ It does not disclose the steps taken to duly transfer the indictment from the General Sessions to the Supreme Court. It does not appear, therefore, whether it was transferred by an order of the General Sessions or of the Supreme Court, or upon whose application it was so transferred, or whether by consent, or with or without notice, or by what form of order or procedure. The Supreme Court has power, expressly conferred by statute, ‘to try any indictment found in any County Court, or the Court of General Sessions of the city and county of New York which has been sent by order of the County Court or General Sessions to and received of the Supreme 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, subd. 4. It is a court of general jurisdiction (Const. art. 6, § 1), and it is presumed to have acted within such jurisdiction in trying the indictment. Smith v. People, 47 N. Y. 330;Steinhardt v. Baker, 163 N. Y. 410-417, 57 N. E. 629. If the defendant desired to raise any question relating to the transfer of the indictment for trial, it was his duty to affirmatively show the facts on which to make his claim. He should have asserted his claim by calling it to the attention of the court at the first opportunity. This he did not do. There is nothing now before the court to establish the defendant's contention, and even if the statements in the defendant's brief are conceded, the defendant's claim has been waived by failure to assert the claim at the trial. People v. Hall, 169 N. Y. 184, 62 N. E. 170;Leighton v. People, 88 N. Y. 117;People v. Wiechers, 179 N. Y. 459, 72 N. E. 501;People v. Hughes, 137 N. Y. 29, 32 N. E. 1105;People v. Huson, 187 N. Y. 97, 79 N. E. 835. Where a defendant submits without protest to the jurisdiction of the Supreme Court to try an indictment against him, he cannot thereafter claim that it was improperly removed to such court from the Court of General Sessions of the city and county of New York. People v. Hall, supra.

The defendant also insists that error was committed by the trial court in refusing to strike out the testimony of the witness W. W. was a school boy 15 years old. He was called as a witness by the people, and sworn without objection. After his direct examination had been finished, and during his cross-examination, he was asked whether he understood the nature of an oath, and answered ‘No,’ and he made a similar answer to a question as to his knowledge of what would be done to him if he swore to something that was not true. He had just previously, and also during his cross-examination, testified that he knew what the punishment is for swearing falsely, and that he knew what perjury means. After the witness had responded to said leading questions, the counsel for the defendant said: ‘I respectfully submit that he is not qualified to testify.’ The court said: ‘Complete your cross-examination.’ No other motion or ruling was made, and no exception taken. The cross-examination was completed, but no further reference was made in any way to the witness W. until the close of the evidence. When the case was about to be submitted to the jury, the defendant's counsel asked to strike from the record the testimony of W., ‘upon the ground that it does not come within the provisions of the Code of Criminal Procedure, authorizing the reception of such evidence and its consideration by the jury, particularly on the ground that the witness testifies that he did not understand the nature of an oath.’ The motion was denied, and the defendant exce...