United States v. Simmons

• Decision Date: 17 January 1891
• Citation: 46 F. 65
• Parties: UNITED STATES v. SIMMONS.
• Court: U.S. District Court — Southern District of New York

46 F. 65

UNITED STATES v. SIMMONS.

United States Circuit Court, S.D. New York.

January 17, 1891

Edward Mitchell, U.S. Atty., and John I. Mott, Asst. U.S. Atty.

Chas A. Hess, Edward H. Murphy, and S. S. Joyce, for defendant.

BENEDICT J.

In this case the indictment against the accused was filed on the 7th day of October of last year. The accused appeared in court and entered a plea of not guilty, but leave was given to withdraw such plea on or before the 20th of October. During that period the plea of not guilty was not withdrawn, nor was any motion made to quash the indictment. On the 10th of December following, the question of fixing a day for the trial on the indictment was presented to the court, and after hearing counsel for the defendant, it was arranged that the case be set down to be tried on the first day of the January term; no intimation having been given of an intention to move to quash the indictment. Now on the day fixed for trial the defendant presents a motion to quash the indictment. This motion, it appears, was originally noticed to be heard at a stated term of the circuit court to be held by the Honorable WILLIAM J. WALLACE on the 12th day of January, two days before the opening of the present term. The motion was not heard by Judge WALLACE, and is now presented to the court at the regular January term. Inasmuch as a motion to quash an indictment after plea can only be made on leave of the court, reason for refusing such leave in this case could be found in the delay to make this application until the day fixed for trial, and after the lapse of several months since the finding of the indictment. The proceeding savors too much of an effort for delay to receive the countenance of the court, but the grounds upon which it is sought to have the indictment quashed upon examination prove insufficient, and I am of the opinion that the motion, if it had been made in time, must have been denied. The grounds of the application are stated in the moving papers by the following language:

'Wherefore deponent asks that the indictment may be dismissed upon the ground-- First. That the same was improperly found. The grand jury, if it reconsidered its determination not to find a true bill, did so improperly and illegally, if no further evidence was furnished to the said grand jury between the time of its decision not to find a true bill and its reconsideration to find a true bill, and its presentment to the court. Secondly. The presence of a stenographer in the grand jury room, taking the testimony of witnesses for the purpose of transcribing the same, was improper, illegal, and contrary to law.'

In support of the first ground, the moving papers show that the ground jury, at some time during their determination, voted not to find a bill against the accused, and, after having so voted, reconsidered their determination, and voted to find a bill. This was done, so far as appears, without any new evidence being presented to the grand...