People v. Moneghan , 1 Park. Cr. 570 ( 1854 )

By the Court,

T. R. Strong, J. —

It is provided by the constitution, (article 6, section M,) that “ the county judge, with two justices of the peace to be designated according to law, may hold courts of'sessions, with such criminal jurisdiction as the legislature shall prescribe, and perform such other duties as may be required by law.” The legislature by article 5, section 42, of the judiciary act, enacted that “ courts of sessions, except in the city and county of New York, shall be held at the time and place at which county courts for the trial of issues of fact by a jury of the same county shall be held, and the same number of grand and petit jurors shall be drawn and summoned therefor, and attend, the same as is now required for courts of general sessions of the peace, in the same county.” (Laws of 1847, 331, 2.) In 1851, the legislature passed an act in these words: “ courts of sessions except in the city and county of New York, shall be held in the respective counties at such times as the county judge of the county shall by order designate. And the county judge shall in such order designate at which terms of the sessions a grand or petit jury or both, or neither shall be required to attend; and no grand jury or petit jury shall be required to be drawn or summoned to attend any term of the courts of sessions which shall be designated by the county judge to be held without such jury; such order shall be published in a newspaper printed in such county, for four successive weeks previous to the time of holding the first term of said court under such order.” These acts were within the constitutional power of the legislature; and no court of sessions could be legally held, or transact any business, before the last named act, except at the times and places regularly appointed for4 and at which should be held, the terms of the^ county court in the same county for the trial by jury of issues of fact; nor since that act can a court of sessions be held at any other times except in pursuance of a previous order of the county judge, made under (he authority of that act, and in conformity therewith, designating such times for the purpose, and published as therein directed. Whether the first named act remains in force in each county, until an order be made by the worthy judge specifying the times for holding the court of sessions therein, and published according to the subsequent act, it is not necessary now to determine.

The indictment in the present case was filed the 23d of March, 1854, and it is stated in the caption thereof to have been found, “ at a court of sessions holden at the court house in the town of Geneseo, in and for the county of Livingston, on the third Monday of March,” 1854. It is alleged in the plea of the defendant, that no term of the county court of said county for the trial of issues of fact by a jury, was held on the third Monday of March, 1854, and that no court of sessions was appointed by any order of the county judge of that county to be held at that time, otherwise than by an order of which a copy is therein given. This allegation is admitted by the demurrer.

The order is in these words: “ At a term of the county court of the county of Livingston, held at the court house in Geneseo, in said county on the third Monday of January, 1854. Present, Scott Lord, county judge. It is. ordered that a grand jury shall be required to attend the terms of said court to be held on the third Mondays of March and November in each year,, and that no grand jury shall be required to attend at any term of this court except as aforesaid.” It. is contended by the counsel for the defendant, that here is. no valid designation of the times for holding the courts of sessions; and I am of that opinion. No court is named, or alluded to by the language employed, besides the county-court; it is the terms specified of that court a grand jury is required to attend; and there is nothing ambiguous in the order. All acquainted with the organization of the judicial department of our state, and the laws relating thereto, can not fail to understand that the learned officer who made the order did not intend by it what it expresses, but designed to appoint two of the terms of the court of sessions; this understanding however can only be obtained by going out of the order, and looking at the facts, that a county court has no power to direct the summoning of a grand jury for that court; that their attendance upon it would be useless; looking also at the aforesaid acts of the legislature; and regarding the whole of this extensive matter in connection with the order,, and drawing an inference therefrom. An order which requires this knowledge and process to learn what was intended by it, is not a valid designation of the times for holding a court of sessions under the act of 1851.

If I am right in the views expressed, all the proceedings in March in relation to the case were void; hence there was no valid indictment upon which, the defendant could be tried.

The conviction must be set aside, and all- proceedings of the sessions quashed.