People ex rel. Devlin v. Court of Oyer & Terminer

In this case the same order was made by the Oourt of Oyer and Terminer, and the same reason assigned for making the order as in the ease of The People ex rel. Sands v. The Court of Oyer and Terminer, decided at the present term. The facts presented are, in some respects, different. It was alleged that there was no such indictment as that described in the recognizance, and that none such was ever found in the Court of General Sessions of the Peace, held in and for the city and county of New York; and, secondly, that, at the time of entering into the recognizance, six indictments against the said defendant Tweed,- for forgery, were pending in the said Oourt of Oyer and Terminer, and if the said recognizances were intended to refer to any of them, it was left uncertain which of them they referred to, and that they were therefore void for uncertainty. The indictment named in the recognizance is described as having been found in the Oourt of General Sessions of the Peace, in and for the city and county of New York, for the offense of forgery. The condition is for the appearance of Tweed at the Court of General Sessions of the Peace to answer said indictments against him, at the present term or at any subsequent term of said court, or in any court where such indictment might be sent for trial. It contained at its foot a stipulation, signed by the parties to the recognizance, that in case the recognizance should be forfeited, judgment might be entered by the clerk of the city and

No point seems to have been made, that the Court of Oyer and Terminer had hot acquired jurisdiction of the indictment, if any such had been found in the Court of General Sessions, but it is alleged, that none such had ever been found in that court. If this was a question upon which the recognizances did not operate as an estoppel, against the defendant, it was one of fact to be tried and determined by some tribunal, and the same thing is true of each of the other objections.

It seems to have been admitted, that six indictments for forgery were found in the court of General Sessions, against said Tweed, on the 20th of February, 1873, and the objection argues, that if the recognizance was intended to refer to any of them, it was left uncertain to which it referred, and was therefore void for uncertainty.

The argument seems to us to be without substance, because the recognizance refers to but one, and the production of Tweed under the recognizance would discharge the surety completely, whatever number of indictments might be in existence. The alleged uncertainty was entirely harmless, since the condition, of the recognizance required the production of the principal to answer but one indictment, and that being done, there would be no obligation to produce him upon another. In this case, no request was made for an order specially directing the prosecution of the forfeited recognizance by the district attorney, and as the order of the court followed the stipulation appended to the indictment, and made therewith matter of record, the court was not legally bound to make any other order than that made. If the court might, in its discretion, have considered the facts alleged, in determining the question, whether the order of forfeiture should be made, yet the relator had, we think, no such legal right, under the circumstances, to demand the exercise of that discretion, as would entitle him to review the proceedings on a writ of certiorari. His rights are, we think, fully preserved and may be enforced by the proper application to the Court of Common Pleas. The writ should be dismissed, with costs.

JBeady and Daniels, JJ., concurred.

Writ dismissed, with costs.