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People v. Devine

28 N.Y. St. Rep. 404 Court N.Y.C.P. Decision date 1889-12-02 English

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p. 404
The People, Pl’ffs, v. M. Devine and Patrick Turley, Def’ts.
(New York Common Pleas, General Term,
Filed December 2, 1889.)

Headnote

Recognizance—Forfeiture—Proof necessary to vacate judgment.
On motion to vacate judgment entered on a forfeited resognizance, the certificate of the district attorney is not sufficient proof that the people lost no rights, but must be supplemented by proof of this fact.
Motion to vacate judgment entered on forfeited recognizance.
Wm. H. Miller, for motion: J. B. Fellows, district attorney, opposed.

The certificate of the district attorney has never been taken as sufficient proof that the people lost no rights by the failure of the prisoner to appear in pursuance of the obligation of the recognizance. The certificate of the district attorney must be supplemented by proof that the people lost no rights. Was the prosecutor present when the prisoner was acquitted? Did he testify? H the prisoner was acquitted because a witness was absent when the trial came on, then the people did lose rights in consequence of the prisoner’s non-appearance. The facts must be set out in detail in order that the court may determine for itself whether or not the people lost rights. Motion denied, with leave to renew.

Larremore, Ch. J., Daly and Yan Hoesen, JJ., concur.