People v. Winchell

7 Cow. 160

• Court: New York Supreme Court
• Decided: May 15, 1827
• Status: Published

Opinion

Curia.

The English practice is spoken of, in their books, as well settled under this statute. The recognizance cannot be forfeited,, unless rules to try are taken against the defendant. He is then bound to give notice of trial. But our practice is different. The defendant is '^obliged to proceed to trial at the circuit of course, without waiting for any rule, either to be entered in the common rule book, or made on motion m court. He must go down, upon the , . . . . , , ’ f ot his recognizance, to the next circuit; and the cause mugt tkere pg heard jn the ordinary way, as criminal causes are a^ oyer and terminer. The time of the circuit is made public; and the defendant must take notice of it at his peril. The district attorney may also go to the circuit prepared, though he receive no notice.

Such being the practice, this recognizance is forfeited; and liable to be estreated. But the defendant shows such cause against it, as would have warranted the judge in postponing the trial. Under the circumstances, let the motion to estreat be taken, unless the defendant renew his recognizance to try at the next circuit in 30 days.

Bronson suggested, that according to the English practice, the old recognizance continued in force, till the cause should be actually tried. y

Sutherland, J. There is some doubt of this upon our practice.

[1]

Buie accordingly.

The New York Revised Statutes provide that, every person against whom an indictment shall be pending in a court of sessions, may apply to any justice of the supreme court, for an order to remove such indictment to the court of oyer and terminer of the county in which the same was found. Such application shall set forth a copy of the indictment, or the substance thereof; the time when it was found; the proceedings thereon, if any, and the facts and circumstances rendering a removal thereof expedient; and shall be verified by affidavit. Such officer shall grant an order that the indictment be removed to, and tried at the next court of oyer and terminer to be held in the county where the same was found, unless it appears that the application was not made in due season, or that such removal will produce any injurious delay, or in any way tend to prevent a due prosecution of such indictment. And the officer must take a recognizance from the defendant (if he is not in custody) to appear at the oyer and terminer.

No such order for the removal of an indictment shall be effectual, in the case of any defendant not being in actual confinement, unless such a recognizance be delivered at the same time with such order, and be filed with the clerk of the .court; nor unless such order be delivered before any judgment rendered on any such indictment, and before any juror shall be sworn to try it.

No certiorari to remove an indictment from a court of sessions to the supreme court or to any court of oyer and terminer, before trial thereon, can be allowed. And no certiorari to remove into the supreme court any indictment pending in a court of oyer and terminer, before trial thereon, is effectual unless allowed by a justice of the supreme court; and no other officer has any power to allow such writ.

The officer allowing a certiorari,to remove an indictment from a court of oyer and terminer is to take the defendant’s recognizance, with sureties, to appear at the return day of the certiorari, in the supreme court, and plead to such indictment, if issue is not already joined; and not depart such court without its leave; and to obey the orders and rules of such court, in respect to the trial of such indictment, and the judgment and all other proceedings thereon.

Every indictment so removed is to be carried down for trial at the proper circuit court, by the district attorney of the county in which the same was found, in the same manner in all respects as issues joined in the supreme court in civil cases, and the same proceedings, so far as applicable, are to be had thereon. 2 R. S. 731 to 733.

Since the adoption of the new constitution, the courts of general sessions of the peace have ceased to exist; but the above provisions of the revised statutes apply to the courts of sessions, which have been substituted in the place of the former courts. Const. of 1846, art. 6, § 14; Laws of 1847, p. 332, § 44. Barb. Cr. Law, p. 350, 351.