People v. McGinnis — 15 N.Y. St. Rep. 382

Majority

p. 382

The People v. McGinnis and Bernard Mooney.

(New York Court of Common Pleas, General Term,

Filed April 2, 1888.)

Headnote

Forfeited recognizance—Application to vacate—What necessary to-show.

Upon an application to vacate a judgment upon a forfeited recognizance

p. 383

it must not only appear that the accused was subsequently surrendered, tried and acquitted, but that the prosecutor and all the witnesses for the people were in attendance on the trial, and that the latter were examined if necessary, and a copy of the evidence taken must be produced.

J. B. Fellows, for the people; W. C. Orr, for def’ts.

When it appears, upon an application to vacate a judgment upon a forfeited recognizance, that the accused was subsequently surrendered, tried and acquitted, it must clearly and satisfactorily appear that the prosecution has not been deprived of proof by the delay.

The certificate of the district attorney to that effect is indisputable, but it is not all that the court requires. It must be shown that the prosecutor and all the witnesses for the people were in attendance at the trial, and that the latter were examined if necessary. A copy of the evidence taken must be produced. People v. Carey & Marsten, 5 Daly, 533 ; People v. Coman, id., 527.

Motion denied with leave to renew upon further proofs with the usual notice to the district attorney.

Van Hoesen, J.