People v. McLaughlin

The defendant was indicted for a felony, and his trial took place in the court of oyer and terminer, in the month of April, 1895. On the 11th day of May the trial was brought to an end by a disagreement of the jury. The judge presiding at the term at which the trial had just been had set down the case for another trial on the 20th day of May, nine days after the end of the first trial. The defendant at once took steps to make a motion to change the place of trial, upon the ground that an impartial trial could not be had in the county of New York. The papers upon that motion, which were very voluminous, were partially finished on the 17th day of May, and on that day a notice of motion was prepared, and upon that notice of motion and the affidavits an order was procured from a justice of this court staying the trial of the criminal action until the time fixed in the notice of motion for the hearing of the application to change the place of trial. These papers, which were regular in form, were served on the district attorney on the afternoon of Saturday, the 18th day of May. The trial of the action in oyer and terminer had been set down for 10 o’clock on the next Monday. The motion to change the place of trial was noticed to be heard at the special term to be held on the 3d day of June, which was 17 days after the date

The first question presented is whether the court had jurisdiction to make this order. For some years before the time when the Code of Criminal Procedure took effect, the proper proceeding to change the place of trial of an indictment for a felony was by a motion in the oyer and terminer. Laws 1859, c. 462. That motion, being made in the court in which the indictment "was pending, was a proceeding in the case, and was subject entirely to the control of the court in which the case was pending. This motion in the oyer and terminer could be made either by the people or by the defendant. But, by the Code of Criminal Procedure, which took effect in 1882, this manner of proceeding was entirely-changed. The criminal action, as the proceedings upon the indictment are called by that Code, was pending in the court of oyer and terminer. The Code provided that a motion to change the place of trial of any criminal action must be made to the supreme court, at a special term in the district, upon notice of at least 10 days to the district attorney of the county where the indictment was pending, with a copy of the affidavits ór other papers upon which the application was founded. Or. Code, § 346. The Code further provided that, to enable the defendant to make the application, a justice of the supreme court might, in his discretion, for good cause, shown by affidavit, make an order staying the .trial of the indictment until the hearing and decision of the motion. Id. § 347. It is apparent, from these and the subsequent sections of the Code upon the subject, that, by this proceeding, the criminal action was not removed from the court of oyer and terminer, but still remained pending therein, and the court was at liberty to proceed with the trial of the action in the ordinary course, unless that trial was stayed as provided by the section quoted above. The proceeding, therefore, to change the place of

When, therefore, this notice of motion and affidavit had been served, the court was in possession of the special proceeding. It is a court of general jurisdiction, and having, by the service of these papers, acquired jurisdiction to act in the matter, it had the power to decide every question which might be brought before it in the proper form; and, if it decided erroneously, its conclusion, while it might be reversed for error, was not void for want of jurisdiction. It is quite true that, before it could acquire jurisdiction to act in the matter, a notice of motion of at least 10 days must be served, because that is the preliminary step which the law requires should be taken to give the court the right to act. But the power to act in the matter came into existence upon the service of the papers. It was not necessary for the court, before any act hould be done, to wait until the expiration of the time mentioned in the notice of motion for the hearing to take place, to enable it to take cognizance of the proceedings; but it

So, therefore, when there was presented to the special term, on the morning of the 20th of May, an order to show cause, in this matter, why the motion should not be heard at an earlier day than that for which it had been noticed, this condition of things existed. A special proceeding, properly commenced, in which all the parties were before the court, was pending, and the court had power, not only to grant or deny the relief ultimately sought, but had the power, besides, to act upon every other question that might be presented to it in the orderly course of practice, and .anything which it did in that regard must be attributed to the exercise of the general jurisdiction which it had acquired; Having that general jurisdiction, and having possession of the cause under it, it was not divested of the jurisdiction by proceeding, in .any incidental matter, in a way not prescribed by the statute. For instance, the statute prescribes that no judgment for default

This principle has also been recognized in several cases reported-in the courts of this state,—notably in Von Rhade v. Von Rhade, 2 Thomp. & C. 491, decided in the First department. That was an action for divorce, in which, as is well known, the court has only -such jurisdiction as is given to it by statute. The summons was served by publication, and, instead of waiting until 20 days after-the service of the summons, the court on the nineteenth day took the defendant’s default, and ordered judgment to be entered against him. A motion was made to set aside the judgment, and it was strongly urged that the action of the court in directing-judgment to be entered before the defendant was in default rendered the judgment void. But this proposition was not acceded-to. It was held that, the court having acquired jurisdiction by the service of the summons, any departure from the statutory provisions regulating the proceedings before judgment was only an irregularity, which did not affect the validity of the judgment. The court cited the case of D'Ivernois v. Leavitt, 8 Abb. Prac. 59 , which was also decided by the general term of this department. The rule laid down in that case was that the want of jurisdiction can never be alleged as to the interlocutory proceedings in an action, where the court has obtained jurisdiction originally, and renders the proper judgment in the case. The rule is also recognized in Schaettler v. Gardiner, 47 N. Y. 404 . It must be borne in mind that the service of the original notice of motion in this proceeding had the effect, not only to fix the time when the moving party sought to bring the matter to a hearing, but it also had the effect to give to the court the power, from the time of its service, to do any act which a court of general jurisdiction might do in the course of the particular proceeding. The jurisdiction of the court, which had been acquired by the service of the notice of motion, could not be divested, because of the fact that the court,

Although we have reached the conclusion that the order made on the 20th of May, by which this motion was denied, was not void, still it was undoubtedly erroneous. There can be no doubt that, under the provisions of the Code of Criminal Procedure above cited, no right is given to the district attorney to move to change the place of trial of a criminal action. If the people have such right under any circumstances, which we do not here decide, that must be found elsewhere than within these sections of the Code of Criminal Procedure. The court had jurisdiction, undoubtedly, to-hear and decide this application, made upon the motion of the defendant; but it was error to attempt to shorten the time within which the motion should be made. The legislature have prescribed, in this, as in many other matters, the time within which proceedings at law shall be taken. For instance, they have directed that at least 8 days’ notice of an ordinary motion must be given, unless the time is shortened by an order to show cause. They have required at least 14 or 16 days’ notice of trial, and that costs should be taxed upon 2 days’ notice. All these requirements-are binding upon the courts. Adherence to them is not absolutely necessary, in every case, to the existence of jurisdiction, because, after the court has acquired jurisdiction, it is not lost by an irregular proceeding; that is, by one which the court had power to take, but is only made irregular because it was taken too soon. But yet such adherence is necessary to correct action in the matters involved. When the legislature has directed the time within, which an act must be done, it is improper to shorten that time, except as a condition of granting a favor. Especially is this strict adherence to the rules of procedure necessary in actions involving the administration of criminal law. A speedy determination of criminal actions is undoubtedly of great importance. It is undoubtedly of great benefit to the community that punishment of crime should not only be certain, but quick. But it is of far more importance, in the administration of the criminal law, that the rules for grave and orderly procedure, which have been laid down by the statute, should be preserved; for it is the observance of these rules which makes the distinction betwreen mob law and the-

In the case at bar, we do not think such rights were protected .as they ought to have been upon this motion. The facts presented by the voluminous papers upon the application to change the place ■of trial called for serious and careful consideration. Many of them undoubtedly were of great force, and they might well have led the defendant to believe that it was doubtful whether an impartial jury could be procured to try his case within the county of New York. Without attempting, here, to express any opinion as to the force of these facts, or whether the plaintiff was entitled to any relief upon them, it is sufficient to say that they were such as ■called upon the court to whom they were presented to carefully weigh and consider them, even if it did not call upon the people to .answer or explain them. It is apparent, from the papers, that no such consideration was had. The court undertook to compel the defendant to bring on this motion at a time sooner than was fixed in the notice, without any fact having been made to appear which would warrant the exercise of that power, even if it existed. The only facts stated in the affidavit of the district attorney were that •a large number of jurors had been summoned to try the case, the hearing of which was set down-for that day. Those facts might have been important as giving a reason why the stay should have been vacated as improvidently granted, or why the court, as a ■condition of retaining the stay, should not compel the defendant to make his motion earlier than the day for it was noticed. But beyond that the court had no power to go in the premises. It was for the defendant to say when the motion should be made, and if the day which he fixed was so far off that a delay of the trial to that time would have operated as an obstruction to the administration of justice, the court might have vacated the stay, upon a proper motion for that purpose, or might have imposed an earlier hearing of the motion as a condition of allowing the stay to continue. But it could not properly fix any other time for the hearing of the motion, and for the reason that it attempted to do that, and, upon the defendant’s refusal to proceed, denied the motion peremptorily, its action was erroneous, and cannot stand. The order denying the motion to change the place of trial should, therefore, be reversed.

The order should be reversed, but, under the circumstances, without costs. All concur.