People v. Smith

20 Johns. 63

• Court: New York Supreme Court
• Decided: May 15, 1822
• Status: Published

Opinion

Platt, J.,

delivered the opinion of the Court. The ohjection to the parol evidence of the summons was properly overruled. The summons was in the possession of the defendant, and the indictment was ample notice to produce it. (The People v. Holbrook, 13 Johns. Rep. 90.) But the evidence, as detailed to us, does not contradict the supposition that Torry filled up the summons in the presence of the Justice ; and if so, there was no violation of the statute. The only question in the case turns on the fact, whether the Justice delivered the summons, signed by him, in blank, and to be filled up by Torry, out of the presence, and beyond the control of the Justice; or whether T. filled it up as the mere clerk of the Justice. The former would be a violation of the statute; but the latter not so. Upon the evidence reported to us, we think there ought to be a new trial; and that the proceedings should he remanded to the Court of Sessions for that purpose.