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People v. Baker

3 Hill & Den. 159 Court N.Y. Sup. Ct. English

Contents

Majority

p. 159
The People vs. Baker.

Headnote

In general, where an indictment charges several felonies in distinct counts, the court at the trial have a discretion as compelling the district attorney to elect under which count he will proceed.
The decision of a court on a matter within its discretion, is not the subject of a writ of error or bill of exceptions.
Accordingly, where on the trial of an indictment containing several counts—e. g. one for receiving stolen goods, another for burglary, and a third for larceny— the prisoner's counsel, immediately after the jury were empanneled, moved that the district attorney be ordered to elect upon which count he would proceed; but the motion was denied: Held, that the court had a discretion as to granting or refusing the order, and that their decision could not be reviewed on bill of exceptions.
On certiorari to the oyer and terminer of Oneida county, where Baker, the prisoner, was convicted of receiving stolen goods of the value of $100. The indictment contained three counts, each charging a felony. The first count was for receiving stolen goods; the second, for burglary ; and the third for grand larceny. At the trial, after the jury were empanneled, and before any evidence was given, the defendant’s counsel moved that the district attorney be compelled to elect whether he would proceed upon the count for receiving stolen goods, or upon the others. A majority of the court concurred in overruling the motion, and the defendant’s counsel excepted.
J. C. Baker,
for the defendant, cited and commented on Rex v. Galloway, (Ry. <£ Mood, Cr. Cas. 234 ; S.C.l Mood.
p. 160
Cr. Cas. 277 ;) Rex v. Murray, (id. 276 ;) Arch. Cr. PI. 61 • The People v. Rynders, ( 12 Wend. 425 , 429, 430;) Kane v. 77»e People, (8 id. 203, 211 j) 77te People v. TYng/ii, (9 id. 193;) Yowng and others v. 77»e King, (3 71 7Z. 103, peí Kenyon, Ch. J.)
T. Jenkins, (district attorney,) contra.

It was in the discretion of the court below whether they would require the district attorney to elect which count he would proceed upon ; and error, therefore, will not lie to review the question. The decision was not the subject of exception.

New trial denied,[1]

(a) (a) As to the joinder of different offences in the same indictment, and the rights of the prisoner in case of an improper joinder, see the books cited by counsel in the principal case; also, 1 Chitty's Cr. Law, 252 to 255, Springf. ed. 1836 ; Barbour’s Cr. Treat. 297 ; Stark. Cr. Pl. 42, Storrs v. The State, (3 Missou. Rep. 9 ;) Frasier v. The State, (5 id. 536 ;) Hildebrand v. The State, (id. 548 ;) Commonwealth v. Hope, ( 22 Pick. 1 , 6 ;) Covy v. The State, (4 Porter’s Rep. 186 ;) State v. Coleman, (5 id. 32 ;) The State v. Briley, (8 id. 472, 475 ;) The State v. Wisdom, (id. 511 ;) The State v. Fant, ( 2 Brev. Rep. 487 , end note ;) Commonwealth v. Manson, (2 Ashm. Rep. 31 ;) McGregg v. The State, ( 4 Blackf. Rep. 101 ;) Hinton v. Brown, (1 id. 429 ;) Campbell v. The State, ( 9 Yerg. 335 ;) State v. Crank, ( 2 Bail. Rep. 66 ;) Tie Commonwealth v. Gillespie, ( 7 Serg. & Rawle, 469 ;) Buck v. The State, (2 Harr, & Johns. 426 ;) State v. Montague, (2 M’Cord’s Rep. 257.)

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