People v. McLaughlin

The defendant was indicted for a felony, and Ms 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 Mew 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 shange 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 Mon-, day. 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 of the notice and 14 days after the time when the ease was set down for trial in oyer and terminer. On the afternoon of the day on which the motion papers were served, the district attorney, upon an affidavit made by him, procured from a justice of this court an order to show cause, returnable on Monday, May 20th, at 10:30 o’clock, why the argument of the motion which had been noticed by the defendant to be heard on the 3d of June should not then and there proceed forthwith before the special term. This order to show cause was served about 7 o’clock in the morning of Monday, May 20th, and at the time prescribed in it both parties appeared before the special term—the people to bring on the motion mentioned in the order to show cause, and the defendant simply for the purpose of objecting to the hearing of the motion, upon the ground that the court had no jurisdiction to require the defendant to make the motion at that time, and upon other grounds which need not now be considered. The court overruled the objections taken by the defendant, and required him to proceed forthwith with the, motion to change the place of trial. This he declined to do, and thereupon the court entered an order denying the defendant’s motion to change the place of trial, and vacating the stay of the trial, From that order this appeal is taken.

The first question presented is whether the court bad 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

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 leaet ten 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 could 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 could, in a proper case, lu.ar and decide other matters which might be presented to it before the return day of the order to show cause. For instance, it would undoubtedly be within the power of the court to postpone the hearing, although the application for that purpose might be made before the time fixed in the notice of motion for bringing on the matter. It might grant to the moving party the right to serve further papers. Any incidental relief, to-which either party might be entitled, in the course of the proceedings, before the time for hearing thereof, might be granted by the court, by virtue of the general jurisdiction which it had, and which it acquired in this proceeding because of the fact that the defendant had brought the people into court in the way prescribed by law. Any act done in the proceeding by the court, after the service of the notice of motion, was done by virtue of its power as a court of general jurisdiction. By virtue of that power it could take cognizance of any motion made in the matter, for such motion might be made as well in a special proceeding as in an action. Code Civ. Proc. §§ 767, 768, Such a motion might be brought on either by an order to show cause or by a notice of motion, as in any other action or special proceeding. To be sure, the special proceeding itself could not be originated by an order to show cause, because the court could only get jurisdiction of it in the manner prescribed by the statute, and that was by tlje service of a notice of motion returnable in- at least ten days. But it must not be forgotten that not only did this notice of motion lie at the foundation of the jurisdiction, but, when properly served, the jurisdiction, attached, and it attached in a court of general ■jurisdic

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 and incidental matter, in a way not prescribed by the statute. For instance, the statute prescribes that no judgment for default shall be taken until twenty days after service of summons, and undoubtedly the court should not enter judgment by default on the nineteenth day arter the summons was received. But the court acquires jurisdiction of the action by the fact of the summons, and if, by mistake or otherwise, it should direct a judgment to be entered on the nineteenth day, instead of the twenty-first, after the service, such a judgment would not be void, but would be simply erroneous, and would either be vacated or reversed in a proceeding taken for that purpose. So the statute prescribed that the trial of an action can be brought on only by 14 or 16 days’ notice, but if the plaintiff, having put his case upon the calendar without serving notice of the trial, proceeds to bring the case to trial, and the court assumes to hear it, even against the protest of the defendant, a judgment entered upon that hearing would not'be void but it would be a valid judgment until it was reversed or set aside. The principle is that where, by the service of due process, the court acquired jurisdiction to act, its action thereafter in doing anything which the law says may be done in the proceeding, although it may be mistaken and erroneous, is not void, but reversible only.

This principle has also been recognized in several cases reported in the courts bf 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 twenty days after the service of the summons, the court on the nineteenth day took the defendant’s default, and ordered judgment tobe en

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, whicti we do not here decide, that must be found elsewhere than within these sections of the Oode 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 matter’s, the time

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 wferé 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

The order, in addition to denying the motion to change the place of trial, vacates the stay which had been granted of the trial of the action in the court of oyer and terminer." This would have been the effect of the order, even though nothing had been said about the stay ; for, when the proceeding had been brought to an end by the final order of the court, the stay granted pending the proceeding necessarily fell of itself. But so much of the order as vacates the stay must also be reversed with the other order. The effect of the final order which is here reviewed was to put an end to the special proceeding to change the place of trial, and to leave the matter in precisely the same situation as though no such proceeding had been begun. When, therefore, the case was moved in the court of oyer and terminer, it was the duty of the court to proceed in the criminal action, unless, for some good reason shown there, the trial should be postponed. The only objection made there was that the order here reviewed was void, which we have found was not the case. No claim was made in that court that the defendant was not ready for trial, except for the reason that his counsel was absent, but that was provided for by the court. The action of the court, therefore, in proceeding with the trial, was proper, if, upon the trial, an impartial jury was impaneled, as we have found, upon the appeal from the judgment, to have been the case. No injustice was done to the defendant by the action of the court in the premises, because he had, as a result of all the proceedings, a trial before an impartial jury, and therefore he had no reason to complain. We do not pass, of course, upon the merits of the defendant's application to change the place of trial. This decision is put solely upon the ground that the action of the special term in compelling the defendant to proceed to a

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

All concur.