People v. Rotolo , 115 N.Y.S. 854 ( 1908 )

Stowell, J.

On January 6, 1908, a Trial Term of the Supreme Court, with a grand jury, began at the court-house in Oswego and continued until January thirty-first, when the presiding judge made an order “ That this court be continued open but stand in recess until such time as it shall be adjourned by the court.” Eo further term or session of the court was held until February twenty-sixth. On January twenty-sixth, the presiding judge discharged the trial jurors and excused the court officers and attendants from further "service; and, during the interim between January thirty-first and February twenty-sixth, he was absent from the city of Oswego.

On February fourth, the judge held a Special Term of the Supreme Court at Syracuse, which continued several days, and he was presumably engaged in duties of his office during all the time between January thirty-first and February twenty-sixth, at other places than in Oswego county.

The evidence against defendant was presented to the grand jury February fourth or fifth and, on the fifth, the grand jury adjourned until February twenty-sixth at which time they were discharged. I am ■ unable to see that, with the judge holding court in Onondaga county, a grand jury sitting in Oswego county have power to find an indictment. ,

A court has been defined to be “ án organized body with defined powers, meeting at certain times and places for the hearing and decision of cases and other matters brought before it and aided in its proper business by its proper officers. Matter of Choate, 24 Abb. N. C. 430-433. “ A place where justice is judiciously administered. * * * A court is properly composed of persons consisting of the judge or judges and other proper officers, united together in a civil organization, and invested by law with the requisite functions for the administration of justice. * * * The court is clearly an organization invested by law with certain functions for the administration of justice. * * * When summoned, sworn and organized, the grand jury are a constituent part of the court, for the performance of the functions and duties '("evolved upon the court, as much as a body of twelve petit jurors impanelled for the trial 'of a person.” Id. 435.

“ The court is the totality of the constituent parts. It consists, of the entire judicial organization for the trial of causes and it is immediately present whenever and wherever — from the opening to the adjournment of the sitting — these constituent parts are actually performing the functions devolving upon them by law.” The times and places for holding terms of court are fixed by statute. Code Civ. Pro., § 238. In Matter of Savin, 131 U. S. 267, the court said: “We are of the opinion that within the meaning of the statute the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors and witnesses.”

I think that the attempt of the learned justice to keep the court open, he being in the meantime absent from the county and part of the time holding a term of court at Syracuse, is not warranted by the law or practice and that the action of the grand jury during that time was null and void.

This motion is made on other grounds than those specified in section 313, Code of Criminal Procedure.

If not entertained, I see no other way to raise the question here presented.

“ But our courts have also always asserted and exercised the power to set aside indictments whenever it has been made to appear that they have been found without evidence, or upon illegal and incompetent testimony.” People v. Glen, 173 N. Y. 395-400.

Motion to dismiss these indictments granted.

It is ordered that the cases be submitted to another grand jury.