People v. Slafford

123 Misc. 488, 205 N.Y.S. 793, 1924 N.Y. Misc. LEXIS 1141

Opinion

Rodenbeck, J.

The statute provides that when two. indictments Are found against a defendant, the second indictment shall supersede the first, which shall be set aside. Code Crim. Pro. § 292a. This section is subject to the constitutional provision that a defendant shall not be twice put in jeopardy (N. Y. Const, art. 1, § 6; 22 Cyc. 223), but he is not so placed until he has been arraigned, pleaded and a jury impanelled and sworn. People v. Rosenthal, 197 N. Y. 394, 401; People v. Fisher, 14 Wend. 9; People v. Mosier, 73 App. Div. 5; Whart. Crim. PL & Pr. (8th ed.) § 490; 16 C. J. 232, § 359; 236, § 363; 237, § 364. No such situation exists in this case, the defendant merely surrendering himself, giving bail and moving to inspect the grand jury minutes, and it cannot be said that the plea of a double jeopardy applies and that the second indictment is a nullity. Even where a jury disagrees, the defendant may be retried before another jury. People v. Goodwin, 18 Johns. 187. The motions to set aside the second indictment and for an inspection of the minutes of the first indictment are denied. .

Ordered accordingly.