People v. Fitzpatrick

The defendant had been held to await the action of the grand jury to convene at May Term, 1883, of the Albany Oyer and Terminer. Before the grand jurors were sw'orn in, the defendant by counsel appeared and filed a paper containing certain objections to the grand jury and prayed the court to discharge them. The district attorney opposed this application. It was thereupon consented by both parties that the motion should stand over without prejudice to defendant’s rights or to the right and duty of the court; that if an indictment should be found, the objections should be considered and determined with the same force and effect as if decided prior to the organization of the grand jury.

The grand jury, then organized, found an indictment against the defendant. About three months thereafter an order was made in said Oyer and Terminer that; as to said defendant, the body impanneled as a grand jury be set aside and discharged as of the date of the first presentation of the objections; that the said indictment against the defendant be not received and stand as quashed; that such order was to take effect as of May seventh; that nothing therein was to affect the action of said grand jurors as to persons not having made such objections.

From this order the people appeal and counsel on each side desire that the case may be considered and disposed of on the main question, rather than upon any technical ground which does not dispose of the merits.

In the first place there is an obvious inconsistency in the order. A grand jury cannot be discharged as to some of the persons indicted and remain as to the others. If discharged as to some, it it must be discharged as to all. Otherwise there would or might

Again, it is obvious that when a body of men have been sworn and impanneled as a grand jury and as such have found indictments, they may be discharged as having finished their labors. But they cannot be discharged retroactively, as is attempted in this order;, so that the order shall take effect as of a date prior to their action as a grand jury. Undoubtedly the indictments found by them .may . for good cause be quashed. But that is a very different matter. No order of the court, taken subsequent to the finding of the indictment, can alter the fact that a body of men, summoned as a grand jury, were not discharged but acted as such and found the indictment.

But counsel on both sides express the wish that this appeal should be considered as if the order had, in fact, been made on the seventh of May. And, therefore, we pass over the inconsistencies above-mentioned. Still they seem to have occurred to the learned justice, because the order not only discharges the grand jury mwne pro time, which could not have been done, but it also quashes or sets aside the indictment. And thus we have the further difficulty that an ■order which is to take effect May seventh quashes or sets aside an ' indictment which had not then been found. That is, it quashes it in advance. The learned justice - well expresses in his .opinion the doubt as to what, the order should be.

Let us next inquire whether the order was proper so far as it -quashed the indictment. The objections raised are precisely those urged in the Petrea ease. (1 N. Y. Grim. R.., 198, 233; 28 Hun, 440 .) It was in that case held by .the Court of Appeals, affirming the decision of this court and of the Court of Sessions, that whei-e' ■an indictment had been found by a grand jury, drawn under this very law and in the very manner now in question, it should not be quashed on the defendant’s motion. It cannot be necessary or proper to argue that question again. "Whatever else may have been -said in thp opinion of the Court of Appeals, that principle was absolutely decided and such decision should govern. The Oyer and 'Terminer then should not, in this case, have quashed the indiet-meni "We think the learned justice must have seen that his decision

It is suggested, however, that although an indictment after it is found ought not to be quashed upon the grounds urged in the Petrea case, yet if these grounds were presented to the court before the indictment was found, as a reason for quashing it after it should he found, then the decision in the Petrea case would not apply and the indictment should he quashed. But this cannot be. That decision held that no constitutional right of the defendant was invaded hy holding him to answer under the indictment, although the same facts appear there as appear here. An indictment cannot be quashed before it is found. After it is found the facts now alleged present no reason for quashing it, as was decided in the Petrea case. Hence the same facts can never be a ground for*quashing an indictment, because until an indictment shall be found a motion to quash cannot be made.

But again, this order discharges the grand jury, or the body so called, and by agreement of counsel we are 'to consider the order as if it had been made May seventh.

The first objection to this part of the order, which is obvious, is that just stated, viz., that on a motion by a person held to trial the court assumed to discharge the grand jury as to him and allow it to stand as to others. How could such an order be properly made at the opening of the court or at any other time? "Would the court, on the seventh of May, havé summoned another especially for this defendant? Would\the court have charged the one grand jury to inquire as to all crimes, except those of Thomas Fitzpatrick, and the other to inquire as to his only ? It is plain that, even when we treat this order as one made at the opening of the court,' it is inconsistent with itself.

Again there are more serious objections. This paper filed' by the defendant, call it by any name he may please, is really in effect a challenge to the array. This is a well known term which calls for

Now the Code of Criminal Procedure (§ 238) forbids any challenge. to the panel or to the array of a grand jury. The counsel for the defendant urges that this section does not prevent objections made before the grand jury is impanneled. But a challenge is an objection made to the swearing in and impanneling of the grand jury, not an objection made after they are sworn in and impanneled. Such has been the ordinary meaning of the word, and in that sense the legislature must have used it when it forbade challenges to the pannel or array. It would be trifling to enact a section which meant that challenges to the panel or array could not be made after a grand jury was sworn in and impanneled, but might be made before.

The learned justice, however, takes another view and thinks that the challenges to the panel or array, which are forbidden by this section, are challenges to a legal panel or array of grand jurors and not challenges to an illegal panel. One would suppose there was not much necessity to prohibit* challenges to the panel or array of a legal grand jury. The section means just what it says, that is, that challenges or objections to the panel or array of the grand jury can no longer be taken. It was. evidently thought that, as the grand jury was only an accusing body, it was unnecessary to give an accused person the right to make objections to the details of its selection.

If the Code had not forbidden challénges of this kind, still, under the decision of the Petrea case, we do not see how this could be allowed. If the law in question were unconstitutional this could not be asserted by a party whose rights it did not affect. (Cooley Const. Lim., 163; People v. B. F. and C. I. R. R. Co. per Finch, MS.; Town of Pierrepoint v. Loveless, 72 N. Y., 211 .) And the decision in the. Petrea case was that the defendant’s constitutional rights were not invaded by holding him to answer the indictment and, therefore, not invaded by the mode of selecting the grand jury. (Friery v. The People, 2 Keyes, 425.)

The learned judge, however, places this order on another ground. Section 238, above cited, after forbidding challenges, provides that the court may in its discretion, discharge the grand jury and order a new one to be summoned for any of several causes, among them,

It may be remarked, in passing, that while in the opinion of the Court of Appeals in the Petrea case the act in question was spoken of as unconstitutional, yet it was distinctly held that the question of constitutionality could not be raised by the defendant in that ease. As it could not be raised by him it could not in that case be decided by the court. As is said by Judge Finch, in People v. Brooklyn, Flushing and Coney Island Railroad (MS. opinion), “it is our duty to decide a constitutional question only when it is directly and necessarily involved in the issue to be determined.” Whatever was said as to the unconstitutionality of the law was obiter, that is, it was not involved in the decision and only served' to encourage further efforts to thwart the criminal law.

"Was then the discretion proper which was thus exercised by the Court of Oyer and Terminer in favor of Fitzpatrick, and refused as to other accused persons ? The Court of Appeals had held that such a grand jury was competent to find valid indictments. Why then should the Court of Oyer and Terminer set aside this competent jury ? The requisite number of ballots had been drawn. These ballots had been drawn from the only box and list of jurors made up in the county from which to draw grand jurors. This box and this list were, in fact, the grand jury box and list. It was plainly immaterial what the box was called. It held, in fact, the names

It sepms to us the error which underlies nearly all of-the reasoning of the learned justice in his opinion is, that he assumes that any man may set up the unconstitutionalty of a law, although it does not affect his rights or subject him to any -wrong. This is carried a step further in assuming that it is a wise discretion to set aside a body of competent officers against the mode of selection of whom, even if it be illegal, no one has the right to set up any objection.

No objection is made by the defendant to the right of the people to appeal from the order, and so that subject is not considered.

The order appealed from should be reversed.

Learned, P. J., and Bookes, J., concurred.

Order reversed.