[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The defendant was tried at the Court of General Sessions in the city of New York, upon an indictment containing two counts, one charging an assault with a deadly weapon with intent to kill, and the other an assault with a dangerous weapon, with intent to do bodily harm, and was convicted on the first count. After conviction the defendant moved for a new trial, which motion was denied, and a motion was then made for an arrest of judgment upon the same grounds as the motion for a new trial, and also upon an affidavit setting forth that the court had communicated with the jury in the absence of the defendant and his counsel, which motion was also denied, and an exception taken. A motion in arrest of judgment must be made for some defect which appears on the face of the record, and cannot be based upon a mere affidavit showing the existence of facts outside of the record, and which do not constitute a part of the same. This was the rule which prevailed before the enactment of the Code of Criminal Procedure. Under that Code provision is made for motions of this kind. Under section 467 such a motion may be founded upon any defects in the indictment which are mentioned in section 331. That section declares that an objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at
the trial under the plea of not guilty, and in arrest of judgment. The motion here was not made upon the ground of any defect appearing in the indictment, or in the record of the proceedings upon the trial, and it cannot, therefore, be considered as a motion in arrest of judgment in accordance with the provisions of the Code already cited. The motion can only be considered as an application for a new trial made upon affidavits, and it cannot be entertained as a motion of that kind, under the Code, for it is not brought within the provisions of either of the subdivisions of section 465, which regulate motions of that character. The ground upon which the motion in arrest of judgment in this case was made, as shown by the affidavit, was that a written communication was received from the jury, after retiring to their room, by the recorder, and that such communication was answered by him in writing. The nature of the communication between the jury and the court is not disclosed, and it nowhere appears, by the record in this case, that any thing transpired, by reason of such communication, which affected the rights of the defendant, or that he was in any way injured thereby. There is no affirmative proof whatever to the effect that the correspondence had any relation to the defendant's case. As the matter stood it is a fair assumption that, there being no improper act done within the knowledge of the court, the recorder was entirely justified in refusing to grant the motion made upon any such ground, even if there was authority for such an act in the case presented. The true practice, it seems to us, would have been to have made a statement of the facts presented by the affidavit as a part of the case and exceptions proposed, and thus furnish an opportunity to the court to make an explanation disclosing the character of the communication. This was the regular course to pursue, and in this manner all the facts relating to the alleged correspondence would have been developed and the record would have shown what actually did take place. What did take place, if it had any relation to the trial of the defendant, constituted a part and portion of the same and should have been incorporated in the record if it affected in any way the
rights of the defendant. This course would have been the proper one in accordance with the decision of this court in Maurer v.The People (43 N.Y. 1), and in this manner all the facts would have been presented, and the defendant would have received the benefit if any error had been committed by the court or any wrong done to him. It may be remarked that, even if, upon the motion, the question was presented, it is by no means clear that the note or communication sent to the jury had any relation whatever to the case upon trial. The presumption is that there was no violation of duty on the part of the court. Without, however, deciding the question whether sufficient was shown, by the affidavit, to authorize the court to grant the motion in arrest of judgment, it is enough to say that that point, as the case stands, is not now presented for review. It appeared on the trial that the difficulty which resulted in the alleged assault occurred in the saloon of one Maurice Strack, that defendant was put out of the saloon by Strack, but returned with a butcher's cleaver and made the assault. Upon the cross-examination of Strack, who was examined as a witness for the prosecution, it was proved that he had collected money for and given the same to the complainant. The question was then put, "when did you hand it to him?" This was objected to and excluded and an exception taken. We think that this evidence was not material and that there was no error committed by the court in excluding the same. The defendant had proved all that was essential to establish the relation which existed between this witness and the complainant, and the evidence which was intended to be introduced by the question put, could not in any way affect the matter, and did not bear such a relation to the same as to render it admissible. We think there was no error committed in rejecting the testimony offered for the purpose of showing the character of the witness Strack, so far as it established violent acts on his part at other and different times. The evidence does not show that the assault was committed in self-defense; the proof is that the defendant was pursuing Strack at the time the deed was done. If the assault had been committed in self-defense, it would have been competent
to show the character of the complainant in justification of the assault made, but evidence as to the character of the witness Strack could have no bearing whatever on the case and was properly excluded. The claim of the defendant's counsel that the defendant was in pursuit of Strack and not the complainant, and that he accidentally assaulted the complainant, would not, under the circumstances presented, justify the admission of the evidence offered, or relieve the defendant from liability for the offense committed. There is, we think, no ground for the claim of the defendant that he would have been justified in taking complainant's life as a matter of self-defense, as he was not assailed at the time or driven to the wall, so as to render such an act a matter of necessity. The question of intent was one of fact for the consideration of the jury. We can discover no error in the charge made or in the refusals to charge as requested.
It was insisted upon the argument, but not claimed in the printed points, that the court erred in limiting the defendant's counsel to thirty minutes in his address to the jury. It appears that when the counsel for the defendant proceeded to sum up, the court decided to limit him to half an hour, and the prosecution to twenty-five minutes. This was objected to, and the counsel began his address to the jury, and at the end of thirty minutes he was called upon to stop by the court. He stated he was not through. The court refused to permit him to proceed, and the counsel excepted to the ruling.
Free access — add to your briefcase to read the full text and ask questions with AI
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The defendant was tried at the Court of General Sessions in the city of New York, upon an indictment containing two counts, one charging an assault with a deadly weapon with intent to kill, and the other an assault with a dangerous weapon, with intent to do bodily harm, and was convicted on the first count. After conviction the defendant moved for a new trial, which motion was denied, and a motion was then made for an arrest of judgment upon the same grounds as the motion for a new trial, and also upon an affidavit setting forth that the court had communicated with the jury in the absence of the defendant and his counsel, which motion was also denied, and an exception taken. A motion in arrest of judgment must be made for some defect which appears on the face of the record, and cannot be based upon a mere affidavit showing the existence of facts outside of the record, and which do not constitute a part of the same. This was the rule which prevailed before the enactment of the Code of Criminal Procedure. Under that Code provision is made for motions of this kind. Under section 467 such a motion may be founded upon any defects in the indictment which are mentioned in section 331. That section declares that an objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at
the trial under the plea of not guilty, and in arrest of judgment. The motion here was not made upon the ground of any defect appearing in the indictment, or in the record of the proceedings upon the trial, and it cannot, therefore, be considered as a motion in arrest of judgment in accordance with the provisions of the Code already cited. The motion can only be considered as an application for a new trial made upon affidavits, and it cannot be entertained as a motion of that kind, under the Code, for it is not brought within the provisions of either of the subdivisions of section 465, which regulate motions of that character. The ground upon which the motion in arrest of judgment in this case was made, as shown by the affidavit, was that a written communication was received from the jury, after retiring to their room, by the recorder, and that such communication was answered by him in writing. The nature of the communication between the jury and the court is not disclosed, and it nowhere appears, by the record in this case, that any thing transpired, by reason of such communication, which affected the rights of the defendant, or that he was in any way injured thereby. There is no affirmative proof whatever to the effect that the correspondence had any relation to the defendant's case. As the matter stood it is a fair assumption that, there being no improper act done within the knowledge of the court, the recorder was entirely justified in refusing to grant the motion made upon any such ground, even if there was authority for such an act in the case presented. The true practice, it seems to us, would have been to have made a statement of the facts presented by the affidavit as a part of the case and exceptions proposed, and thus furnish an opportunity to the court to make an explanation disclosing the character of the communication. This was the regular course to pursue, and in this manner all the facts relating to the alleged correspondence would have been developed and the record would have shown what actually did take place. What did take place, if it had any relation to the trial of the defendant, constituted a part and portion of the same and should have been incorporated in the record if it affected in any way the
rights of the defendant. This course would have been the proper one in accordance with the decision of this court in Maurer v.The People (43 N.Y. 1), and in this manner all the facts would have been presented, and the defendant would have received the benefit if any error had been committed by the court or any wrong done to him. It may be remarked that, even if, upon the motion, the question was presented, it is by no means clear that the note or communication sent to the jury had any relation whatever to the case upon trial. The presumption is that there was no violation of duty on the part of the court. Without, however, deciding the question whether sufficient was shown, by the affidavit, to authorize the court to grant the motion in arrest of judgment, it is enough to say that that point, as the case stands, is not now presented for review. It appeared on the trial that the difficulty which resulted in the alleged assault occurred in the saloon of one Maurice Strack, that defendant was put out of the saloon by Strack, but returned with a butcher's cleaver and made the assault. Upon the cross-examination of Strack, who was examined as a witness for the prosecution, it was proved that he had collected money for and given the same to the complainant. The question was then put, "when did you hand it to him?" This was objected to and excluded and an exception taken. We think that this evidence was not material and that there was no error committed by the court in excluding the same. The defendant had proved all that was essential to establish the relation which existed between this witness and the complainant, and the evidence which was intended to be introduced by the question put, could not in any way affect the matter, and did not bear such a relation to the same as to render it admissible. We think there was no error committed in rejecting the testimony offered for the purpose of showing the character of the witness Strack, so far as it established violent acts on his part at other and different times. The evidence does not show that the assault was committed in self-defense; the proof is that the defendant was pursuing Strack at the time the deed was done. If the assault had been committed in self-defense, it would have been competent
to show the character of the complainant in justification of the assault made, but evidence as to the character of the witness Strack could have no bearing whatever on the case and was properly excluded. The claim of the defendant's counsel that the defendant was in pursuit of Strack and not the complainant, and that he accidentally assaulted the complainant, would not, under the circumstances presented, justify the admission of the evidence offered, or relieve the defendant from liability for the offense committed. There is, we think, no ground for the claim of the defendant that he would have been justified in taking complainant's life as a matter of self-defense, as he was not assailed at the time or driven to the wall, so as to render such an act a matter of necessity. The question of intent was one of fact for the consideration of the jury. We can discover no error in the charge made or in the refusals to charge as requested.
It was insisted upon the argument, but not claimed in the printed points, that the court erred in limiting the defendant's counsel to thirty minutes in his address to the jury. It appears that when the counsel for the defendant proceeded to sum up, the court decided to limit him to half an hour, and the prosecution to twenty-five minutes. This was objected to, and the counsel began his address to the jury, and at the end of thirty minutes he was called upon to stop by the court. He stated he was not through. The court refused to permit him to proceed, and the counsel excepted to the ruling. The counsel for the people then proceeded to address the jury and continued until five minutes more than his allotted time had expired, when he was called upon to stop. The time which counsel are to occupy in presenting a case to the consideration of a jury necessarily must be, to a great extent, a matter in the discretion of the court. Were it otherwise an unlimited period might be taken without any advantage to the client and causing great delay in the proceedings of the court and an injury to the administration of justice. The time to be used for such a purpose must, therefore, be a matter to be regulated by the presiding judge upon the trial, the same as any other proceeding during the progress of the case. It is to be presumed that
the court will properly guard and protect the rights of parties so that justice can be administered to all, and the judge is certainly a competent and the proper person to determine as to the time which would be required for a proper discussion and presentation of the case upon trial. Hence it follows that the court has a right to exercise a discretion in this respect, and unless such discretion is abused it is not the subject of review in a higher tribunal. In the case at bar the testimony lies within a narrow compass; not many witnesses were sworn, and the questions of fact presented were not numerous. The trial was commenced and the evidence on both sides submitted the same day. The principal defense interposed by the defendant was self-defense, and some evidence was introduced tending to show that the defendant, at times, had been affected in his mind so as to render him irresponsible for the act done. There was, however, no direct proof that such was, the case at the time of the assault for which he was tried. Upon the whole case the testimony was not very complicated, and although a difference of opinion might exist among counsel and judges as to the period of time which would be required for the proper presentation of the case for the defendant, yet we think it cannot be said that the judge, upon the trial of this case, in the exercise of his functions, and having in view the gravity of the charge and the rights of the defendant, exceeded his powers or abused the discretion with which he was invested. There is no ground for claiming that justice was not impartially administered or that the time allowed was not entirely sufficient to cover the case under the facts developed. The fact that the district attorney exceeded the time allowed him may have arisen from inadvertence and does not tend in any way to establish that the discretion of the judge was improperly exercised. The counsel for the defendant had the right to ask the judge to stop him when his time had expired, and, not having made that objection, he has no real ground of complaint.
As no ground of error is manifest, the judgment should be affirmed.
All concur, except DANFORTH, J., not voting.
Judgment affirmed.