People v. Judges of the General Sessions of the Peace

13 Johns. 85

Opinion

Per Curiam.

This is an application for a mandamus , to the eburtof general sessions of the county of Genesee,, to: compel them to proceed, to the trial Of Henry Markham', upon an indictment for an assault and battery. The affidavit of the district attorney states, that the co.urt refused: to proceed to tlie trial of Markham, solely on the ground- that a private suit had been commenced, dnd was then pending-against him, by the prosecú-. tor. ," This Was. not-a sufficient reason for ■pbstponifig-'thé. trial of the-indictment. It might be good cause for suspending j.udg-; ment, if the defendant should be found .guilty, in order, in some measure, to regulate the discretion of the court in: imposing the punishment. We' think, however, that the application for- a mandamus ought not to- be granted at this lime. The indictment was found at the same term in whijeli-the public prosecutor _ moved to. bring on the trial. Tlie .delay, therefore, has. not, as yet, been- unreasonable... tThe' court-of, general'sessions, from What is stated by the district -attorney, were,, .probably*- misled by what is said in Espinass’cds Digest,. ,(1 Esp. part. 2 184.

Footnotes

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*) that it . is the practice in New-¥oricfiti-such'Cages,'-to stay the criminal suit Until a, decision in the .private action-. We are not aware of any such practice,, ñor do We think it Warranted,.if pny thing more is intended than á stay' of judgment after conviction. The rules and principies which govern the granting of informations, are not applicable to the trial of indictments.. Should the. court, hereafter, postpone. the trial of the indictment, solely on the ground bf the'pendency Of the private suit, it might become necessafy and proper for this court to interfere by-m«ndá»íMs. But,’ Under the circumstances attending the case, as-' now presented to üs,.. we think the application ought to be denied. . -

Motibn- denied.

Gould's edit. 2 Burr. 919.