People v. Jackson

114 A.D. 697, 100 N.Y.S. 126, 1906 N.Y. App. Div. LEXIS 2168

Opinions

Nash, J.:

Sixteen indictments have been found by the grand jury of the county of Erie charging the defendants with the crimes of grand larceny, first degree, in receiving stolen property, of receiving bribes, and of asking for, agreeing to receive and receiving bribes, some of which are against both defendants jointly, some of them against each of the defendants severally, and two against these defendants jointly with others, all growing out of the same subject-matter.

These defendants moved at Special Term in the county of Erie, on May 10, 1906, for an order changing the place of trial from the county of Erie to another county, and from the order denying the defendants’ motion this appeal is taken.

On behalf of the People the defendants’ right of appeal from the order is questioned, upon the ground that under the Code of Criminal Procedure this court has not jurisdiction to entertain the appeal.

Under the former practice a motion to change the venue of a criminal action was made in the Supreme Court upon the removal of the cause by certiorari. (People v. Vermilyea, 7 Cow. 108, 136, 139.) In that case opinions upon the motion to change the place of trial were delivered by Savage, Oh. J., and Woodworth, J. The latter in his opinion said: “ There is no doubt of our power, upon a proper case, to send a criminal cause down for trial to a county other than that in which the venue is laid. Crimes, however, are essentially local. Hence, the venue as such cannot be changed. The place of trial must be altered by suggestion, and on clear proof that the cause cannot be tried in the county where the offense is laid, with safety to the rights of the defendant.”

Savage, Ch. J.: “ The counsel for three of the defendants move that the cause shall be carried down to the Circuit for trial, instead of being remitted to the Oyer and Terminer; and that the venue be changed. * * * The course in criminal prosecutions, where a clear case is made out, is to order a suggestion upon the record that a fair and impartial trial cannot be had in the county where the offense is laid. A venire is then awarded to the sheriff of another county, and the cause tried there, the indictment remaining unaltered as to the venue.”

In People v. Webb (1 Hill, 179), upon a motion of the district attorney to change the place of trial, it was said, per Cowen, J.: “This is a motion to change the venue in two indictments for libels upon Mr. Cooper, from the county of Otsego to some adjoining county. The motion is made on the part of the people, and is founded on the alleged fact that in consequence of a series of pub lications against the complainant, the public mind has become so much prejudiced against him in respect to the prosecutions that a fair and impartial trial cannot be had in Otsego. The Revised Statutes (2 R. S. 614 [2d ed.], § 1) impliedly authorize us to make such a change for special cause on an indictment coining into this court by certiorari.”

In People v. Bodine (7 Hill, 147) the defendant was indicted and tried for the crime .of murder in the county of Richmond, and after a protracted trial the jury were discharged by the court on the ground that they were unable to agree upon a verdict. The indictment was then removed into the Supreme Court by certiorari, and a motion was made to change the venue from the county of Richmond to the county of Hew York, upon the allegation that a fair and impartial trial could not be had in the former county. The opinion of the court was delivered by Helson, Oh. J., denying the motion. An attempt was afterward made to impanel a jury in the. county of Richmond, but without success, whereupon the district attorney moved to change the venue and the motion was granted.

In People v. Baker (3 Abb. Pr. 42) the place of trial was changed at Special Term on motion of the district attorney, the court holding that “ a certiorari to remove a criminal action from the Oyer and Terminer to the Supreme Court may issue at the instance of the district attorney as well as on application on behalf of the defendant.”

In People v. Sammis (3 Hun, 560) the General Term of the second department entertained an appeal from an order at Special Term denying the defendants’ motion for a change of the' place of trial.

In People v. Long Island Railroad Co. (16 How. Pr. 106) the Brooklyn General Term changed the place of trial upon motion of the defendants from the county of Kings to Westchester county.

The procedure, therefore, was wholly in the Supreme Court, which under its general jurisdiction and the practice of the court entertained the application for a change of venue both when originally made and upon appeal.

It is urged in behalf of the People that the order appealed from is an intermediate order within the meaning of the sections of the Code of Criminal Procedure regulating appeals, from which an appeal can only be taken after trial and judgment. (Code Grim. Proc. §§ 515, 517, 522.)

Section 515. “Writs of error and of certiorari in criminal actions and proceedings and special proceedings of a criminal nature, as they have heretofore existed, are abolished; and hereafter the only mode of reviewing a judgment or order in a criminal action or proceeding, or special proceeding of a criminal nature, is by appeal.” Section 517. “ An appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment, except that when the judgment is of death, the appeal must be taken direct to the court of appeals, and upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment-roll, as prescribed by section four hundred and eighty-five may be reviewed.”

Section 522. “ An appeal must be taken by the service of a notice in writing on the clerk with whom the judgment-roll is filed, stating that the appellant aj)peals from the judgment.”

An order in a proceeding to remove an indictment from the court in which it is pending to the Supreme Court held in another county, on the ground that a fair and impartial trial cannot be had in the county where it is pending, is not one of the papers enumerated in section 485 of the Code of Criminal Procedure, and, therefore, it is not an intermediate order forming a part of the judgment roll within the meaning of said section 517.

The practice in a proceeding for the removal of the action before trial is regulated by chapter 8 of title 5 of part 4 of the Code of Criminal Procedure, section 343 of which provides: “ All writs and other' proceedings heretofore existing, for the removal, upon the application of the defendant, of criminal actions prosecuted by indictment, from one court to another before trial, are abolished.” Section 344.

Footnotes

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* “ A criminal action, prosecuted by indictment, may at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter, in the following cases :

“ 1. From a county court or a city court, to a term of the Supreme Court held in the same county, for good cause shown.

“2. From the Supreme Court, or a county court or a city court, to a term of the Supreme Court, held in another county, on the ground that a fair and impartial trial can not he had in the county or city where the indictment is pending.”

Section 346. “ The application for the order of removal must he made to the Supreme Court, at a special term in the district, upon notice of at least ten days to the distinct attorney of the county where the indictment is pending, with a copy of the affidavits or other papers on which the application is founded.”

In People v. McLaughlin, No. 1 (2 App. Div. 408) the Appellate Division entertained an appeal from an order denying the defendant’s motion to change the place of trial. The case is stated in the opinion of the court as follows : “The defendant was indicted for a felony, and his trial took place in the Court of Oyer and Terminer in the month of April, 1895. On the eleventh day of May the trial was brought to an end by a disagreement of the jury. The judge presiding at the term at which the trial had just been had, set down the case for another trial on the twentieth day of May, nine days after the end of the first trial. The defendant at once took steps to make a motion to change the place of trial upon the ground that an impartial trial could not be had in the cotinty of Hew York. The papers upon that motion, which were very voluminous, were partially finished on tlie seventeenth day of May, and on that day a notice of motion1 was prepared, and upon that notice of motion and the affidavits an order was procured from a justice of this court staying the trial of the criminal action until the time fixed in the notice of motion for the hearing of the application to change the place of trial. These papers, which "were regular in form, were served on the district attorney on the afternoon of Saturday, the eighteen tli day of May. The trial of the action in Oyer and Terminer had been set down for ton o’clock on the next Monday. The motion to change the place of trial was noticed to be heard at the Special Term to be held on the third day of June, which was seventeen days after the date of the notice and fourteen days after the time rvhen the case was set down for trial in Oyer and Terminer. On the afternoon of the day on which the motion papers were served the district attorney, upon an affidavit made by him, procured from a justice of this court an order to show cause, returnable on Monday, May twentieth, at ten-thirty o’clock, why the argument of the motion which had been noticed by the defendant to be heard on the third of June, should not then and there proceed forthwith before the Special Term. This order to show cause was served about seven o’clock in the morning of Monday, May twentieth, and at the time prescribed in it both parties appeared before the Special Term; the People to bring on the motion mentioned in the order to show cause, and the defendant simply for the purpose of objecting to the hearing of the motion upon the ground that the court had no jurisdiction to require the defendant to make the motion at that time, and upon other grounds which need not now be considered. The court overruled the objections taken by the defendant, and required him to proceed forthwith with the motion to change the place of trial. This he declined to do, and thereupon the court entered an order denying the defendant’s motion to change the place of trial and vacating the stay of the trial. From that order this appeal is taken.”

The order denying the defendant’s motion to change the place of trial was reversed, also the order vacating the stay, the latter upon the ground that the order vacating the stay had the effect of limiting the time within which the defendant had the right to move for a change of venue.

In the meantime, the defendant having been tried and convicted and the judgment of conviction affirmed (People v. McLaughlin, No. 2, 2 App. Div. 419), an appeal was taken to the Court of Appeals (150 N. Y. 365), where the defendant’s contention 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 his conviction, was sustained. In the opinion of the court, per Martin, J., it is said : “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 Flew 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 ivas subsequently incorporated into the statutes of the State. The provisions of the Code of Criminal Procedure upon the subject have been evolved from previous legisla tion, 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 were as follows: * ‘A criminal action prosecuted by indictment may, at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter, in the following cases: * ■* * 2. From a court of oyer and terminer or sessions, or a city court to the court of oyer and terminer of another county, on the ground that a fair and impartial trial cannot be had in the county or city where the indictment is pending.’ (§ 844) If a former trial has been had, the indictment may be removed before a new trial. (§ 345.) ‘ The application for the order of removal must be made to the Supreme Court at a special term in the district, upon notice of at least ten days to the district attorney of the county where the indictment is pending, with a copy of the affidavits or other papers on which the application is founded.’ (§ 846.) 1 To enable the defendant to make the application, a judge of the Supreme Court may, in his discretion, upon good cause shown by affidavit, make an order staying the trial of the indictment until the application can be made and decided.’ (§ 347.)

“ That the right thus given is a substantial one and has always been regarded as of great importance to a defendant, is manifest not only from the time it has existed, but also from its paramount necessity to fairly protect his just rights and interests. The right of every person accused of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury is a fundamental principle of criminal jurisprudence. For the protection of persons accused of crime, the huy; as a safeguard against local prejudice, has benignly provided this remedy.

“ Under the statute the defendant had an absolute right to apply to the Supreme Court for a removal of the action before trial, upon the ground relied upon. Of this he has been deprived. Having thus been deprived of a substantial right, and the district attorney having proceeded with the trial of the indictment which resulted in the defendant’s conviction, in defiance of such right, we are unable to perceive any proper ground upon which the action of the Appellate Division can be sustained, so far as it failed to set aside the proceedings and trial, and thus .accord to the defendant the benefit of this statutory remedy.”

Upon the question of jurisdiction Mr. Justice Rumsey, in his opinion at the Appellate Division, said (p. 411): “ It is apparent from these and the subsequent sections of the Code upon the subject, that by this proceeding the criminal action was not removed from the Court of Oyer and Terminer, but still remained pending therein, and the court was at liberty to proceed with the trial of the action in the ordinary course, unless that trial was stayed as provided by the, section quoted above. The proceeding, therefore, to change the place of trial was not a proceeding in the criminal action, but it was a matter outside of that action brought to obtain relief which was no necessary part of the criminal action itself. It resembled more an application for a writ of prohibition or mandamus directed to an inferior court to direct the course of proceeding in that court in an action Avhich was pending in it, but which did not draw to itself the particular action with regard to which the writ was asked. The proceeding was one in the Supreme Court. It was a proceeding for the enforcement of what was claimed to be a right, and it was not a civil action, because a civil action is an ordinary proceeding instituted by a summons. * * * This one was within the definition of the Code of Civil Procedure a special proceeding. (Code Civ. Proc. §§ 3333, 3334.) It could only be commenced by the service of the affidavits and notice of motion. . When those papers were served upon the People they were brought into court and the proceeding had an inception, and from that time the Supreme Court had jurisdiction of the proceeding, because the service of the notice of motion lay at its foundation, and was the mode prescribed by the statute for bringing the People into court upon the application for the relief sought.”

The subsequent amendment of these sections of the Code of Criminal Procedure by chapter 880 of the Laws of 1895 to conform to the change of judicial procedure by which all actions and proceedings in the Courts of Oyer and Terminer were transferred to the Supreme Court did not work any change in the practice or proceeding to change the place of trial of criminal actions. It remains the same and is a proceeding in the Supreme Court governed by the general rules of practice of that court, including the right of appeal from an order of the Special Term affecting a substantial right.

The only case in which the question of jurisdiction to entertain the appeal has arisen since the amendment is that of People v. Sarvis (69 App. Div. 604). The district attorney urged that the order was not appealable to that court inasmuch as the appeal from a conviction for the crime for which the defendant was indicted, murder in the first degree, would be taken direct to the Court of Appeals, and on such appeal the order appealed from could be reviewed, and not otherwise. The court said: “We cannot agree to this conclusion. We are clearly of the opinion that an order of this character can be reviewed by this court, and that it has the power, where the defendant has been indicted for the crime of murder, to change the trial from the county in which the indictment has been found to another county in the State, in order that a fair and impartial trial may be had before an unprejudiced jury, but there is nothing in the record before us from which it can fairly be said that such a trial cannot be had in the county of Orange.”

Although the order denying the motion was affirmed, the opinion was that of the whole court, deliberately expressed.

Wherever the question has been up in a preceding to change the place of trial, the authorities are to the effect that the order is appealable.

The cases relied upon in support of the contention of counsel for the respondent are not applicable.

In People v. Trezza (128 N. Y. 529) the appeal was from an order denying a motion for a new trial on the ground of newly-discovered evidence, made after the affirmance of a judgment of conviction of the defendant for the crime of murder in the first degree. It was held that such an order is only reviewable in connection with and upon appeal from the judgment and when it is embodied in the judgment roll. In the case of People v. Priori (163 N. Y. 99) it was held that an order denying a motion for a new trial upon the ground of newly-discovered evidence, made after a judgment of death and an appeal therefrom by the defendant and in time to include the proceedings in a case, is reviewable as an incident to the appeal. In that case the Court of Appeals entertained an appeal from an order of Special Term denying a motion for a resettlement of the case, holding that although there is no express statutory provision authorizing such review, the power to hear and determine the appeal necessarily implies the right to settle the preliminary practice so far as it is not fixed by statute.

In the case of People ex rel. Hummel v. Trial Term (184 N. Y. 30) the grand jury of the Court of General Sessions of the Peace held in and for the county of Hew York had found two indictments against the relator, charging him with the crime of subornation of perjury. These indictments had been transferred to the criminal branch of the Supreme Court, which was held by Mr. Justice Davy, before whom the district attorney contemplated the trial of the charges. Thereupon the defendant moved the court for an order quashing the indictments upon the ground that he had been compelled to testify against himself before the grand jury. This motion was denied, and then the relator procured an alternative writ prohibiting the justice from proceeding with the trial until the further order of the Appellate Division. Subsequently the matter was brought to a hearing before that court, resulting in an order denying the relator’s application for an absolute writ of prohibition as a matter of law, and not in the exercise of discretion, and the quashing of the alternative writ. The Court of Appeals in affirming the order of the Appellate Division, held that, although not specifically mentioned as one of the papers constituting the judgment roll as provided by section 485 of the Code of Criminal Procedure, an order denying a motion to dismiss an indictment is embraced in the general provisions of the section, and may be included in and form part of the judgment roll; that the defendant, having a complete remedy by appeal from a judgment of conviction, was not entitled to a writ prohibiting the judge from further proceeding with the trial.

In People v. Martin, No. 1 (99 App. Div. 372) the appeal was from an order of the Court of General Sessions of the Peace in and for the county of Hew York denying defendants’ motion to dismiss an indictment for lack of prosecution. The court, in expressing the opinion that the order was not appealable, put the case in that class in which appeals are expressly allowed by the Code of Criminal Procedure from a judgment of conviction.

The distinction between all of the cases cited in behalf of the respondent’s contention and the case at bar is that in a proceeding to change the place of trial the right of review is inherent in the court in the exercise of its general jurisdiction.

The defendants are charged with wrongdoing in connection with the Sixty-fifth Regiment Armory, erected upon the site of an old cemetery, in the city of Buffalo, from which the remains of many thousands of bodies had to be removed in preparing the site for the armory. As supervisors, members of the board of supervisors of the county of Erie, the defendants are charged individually and jointly with the crime of grand larceny, in feloniously taking and appropriating individually and jointly with others, large sums of money the property of the county of Erie, and are individually charged with taking bribes for their votes as supervisors in favor of the adoption of resolutions relating to the expenditure of moneys for the removal of bodies from said cemetery, and reinterment elsewhere, and the removing and resetting of monuments, stones and slabs in said cemetery. That the whole amount of money charged to have been taken in the grand larceny indictments is. §52,072, and the amount alleged to have been paid as bribe money §27,404.

We are not required to determine on this appeal whether or not the learned justice at Special Term properly exercised his discretion in denying defendant’s motion for a change of the place of trial, for the reason that the affidavits on the motion of Reff, made part of the record by stipulation, were not, it seems, considered by the court at Special Term in disposing of the motion.

The learned justice in his opinion said: “ This motion differs radically from that made in The People v. John W. Neff, where upwards of one hundred and thirty affidavits were presented, showing a strong sentiment and hostile feeling existing against him in this community, and in all the towns of this county.”

The same strong sentiment and hostile feelings existed in the towns of the county and in the city of Buffalo against these defendants as against Reff. The criminal charges against Reff and these defendants individually grew out of the same subject-matter. The charges of graft against these defendants were made the subject of comment and illustration in the daily press for months beginning in Rovember last, and continuing through the months of January, February, March and April, during which period the newspapers vied with each other in displaying headlines and gruesome details, charging ■ the defendants and other county officials with graft in the purchase of the site and expense of removal of bodies from said cemetery. Exemplifications of headlines in large type:

“ARMORY- GRAFTERS TO BE PROSECUTED. EVIDENCE of Graft Piling up in Armory Site. LOOT. OF TIIE ROGUES. $43,000 SAYS STURM (County Auditor). Money Filched in Cemetery Deal. Sturm’s Report Shows the Deal up. Officials Who signed the Warrants for Conover’s Thousands. Gibson, Neff and Others. Discrepancy of $35,000 in One Place. County is Robbed of About $55,000. Startling Disclosures Relative to Buying the Old North Street Cemetery Property as a Site for the 65th Regiment Armory. Are Buried in Trenches and Contract Violated. At Least 168 Bodies were identified that should have had decent Burial ■—• A Disgrace to Humanity. Black for Con-over; Ghoulish Work Done, His -Own Men Swear. Gave Orders to Count a Few Bones as a Body; skull bones carried around in pockets and supplied on demand.. Cady Swears He Saw Some Bodies Divided. Grave Workers Say Orders Were to Make as Many Bodies as They Could. (Cartoon): Vultures of the Cemetery Deal. ' Bones of Bodies Thrown into Big Boxes, then Separated. Mixed and Buried in Small Boxes. Sometimes One Bone Representing Whole Corpse. GIBSON and JACKSON ARRAIGNED : Stand to Answer for Their Share in the North Street Cemetery Loot. Are under Indictment. (Cartoon): Procession of prisoners in charge of officers. Officers leading with indictment toward an open door; guard in front. Auburn Prison over the door. (Legend): To the graveyard of the ghouls. Condemned by the Living and the Dead.

“ Buffalo Courier (Sunday Morning, April 1st, 1906. This Edition of the Courier goes into over 90,000 homes, thus assuring at least 350,000 readers). Courier Exposed Thieves and Grafters in 1900 ; Warned Gang that Day of Reckoning would come. Day by Day Ghouls Who Fattened on the Dead were Held up to Shame. What the Courier said when Supervisors put through the Armory Site Deal: (The Buffalo Courier, Wednesday, May 2nd, 1900). Supervisors Ignoring Honor and Duty Bind Erie County to Most Expensive and Disgraceful Deal in Unblushing Haste. Board Commits Itself to $1,000,000 Armory Site Deal. In Shameful Defiance of the Taxpayers’ Bights. Day will Go Down in County Legislative Annals as the Blackest Blot Upon the Pages of Official Archives.”

The affidavits show that there were buried in said cemetery at least 8,000 bodies of persons who have relatives, descendants or friends now residing in the county of Erie, and that by reason of the widespread sentifnental interest of a very large number of persons in said cemetery, and the removal of said bodies, and by reason of the widely-circulated newspaper articles, public opinion in the community has become especially inflamed toward all of the persons indicted in connection with said matter ; that there has been a universal expression of opinion among all classes of people antagonistic to all persons charged with complicity in the crimes said to have been committed.in connection with the subject-matter of the indictments against the defendants; that the prejudice created against all persons charged with the commission of cz-imes in cozmection with the acquiring of the site for said arznory is deep rooted and pervades the entire city of Buffalo azzd county of Erie; tlzat the action of the members of the board of supervisors and other comity officials in connection with said matter has been the subject of izzvestigation by at least four grand juries of the county of Erie; that nearly every member of the board of supervisors during, the years 1900 azzd 1901 has been called before said grand juries, and great publicity has been given by the newspapers of the city of Buffalo to the fact tlzat said supervisors have beezz called azzd exazzzizied as 'witnesses before said grand jnires; that by reason of said exazninatiozzs of said supervisors and by reason of such publicity the attention of almost every resident of the city azzd county has been attz-acted towards said investigations; that sizzce such charges have been publicly made and said indictmezzts found against the defendants and other officials, the subject thereof lias been the matter of public conversation in the hotel lobbies, street cars, upon the streets and public places, and in the various clubs of the city of Buffalo, and in the hotels, shops, stores and public places in the sevei'al towns of the county of Erie, and expressions of belief in the guilt of the pei’son indicted are very general throughout the city and county.

In People v. Georger (109 App. Div. 111), where the defendant was charged with grand larceny and perjury in wrecking a bank, the newspapers of the city of Buffalo almost without exception proclaimed him guilty of the acts and delinquencies thus charged. It appearing from the record that people of all classes gave assent to the opinions expressed in the public press, it was held sufficient to change the venue. There the failure of the bank affected pecuniarily a large -number of depositors. Here the entire body of taxpayers are jDecuniarily affected. But more than that, the relatives and friends of more than 8,000 persons buried in said cemetery, whose bodies are said to have been removed in the manner indicated as above, feel themselves outraged, and justly so. These exposures must necessarily have created the deep feeling of antagonism felt generally among all classes of people, as stated in the moving-affidavits, sufficient to warrant the belief expressed that a fair and impartial trial of the defendants cannot be had in the county where the indictments are pending, and for that reason the order denying defendants’ motion for a change of the place of trial to another county should be reversed.

Another reason exists in the fact that the place of trial of Neff, jointly indicted with these defendants, has been changed.

In Colby’s Criminal Law (Yol. 1, p. 32-1) it is said : “Where the indictment is against several persons, and enough is shown on the part of the prosecution to make a change of the place of trial proper as to one defendant, the change will be made as to all the defendants, although it is a case in which every defendant is entitled to a separate trial.”

The order appealed from should be reversed, and the motion to change the place of trial of the indictments against the defendants from the county of Erie to a term of the Supreme Court to be held in another county, should be granted, the county to be the same as that to which the indictments against Heff are removed.

All concurred, except Spring and Kruse, LL, who dissented in an opinion by Kruse, J.

See Laws of 1895, chap. 880.— [Rep.

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See Laws oí 1881, chap. 442, §§ 344-347.— [Rep.