
    The People v. Harry E. Vaughan and G. W. Holt.
    (County Court, Kings County,
    January, 1897.)
    1. Indictment — May be set aside for insufficiency of evidence.
    The court has power to set aside an indictment on the ground' that the evidence taken before the grand jury was insufficient.
    2. Same — Terms.
    Where the defendants have been guilty of laches in making the motion and the district attorney asserts that he has.evidence in his possessioti sufficient to warrant a belief that defendants would be convicted, the dismissal of the indictment should be without prejudice to a submission of the case to the grand jury.
    Motion to set aside an indictment.
    Foster L. Backus, district attorney (Walter 0. Miles, assistant district attorney, and Henry S. Davis, of counsel), for People.
    Friend, House & Grossman (Moses II. Grossman and Bobert H. Elder, of counsel), for defendant Vaughan.
    Herbert T. Ketch am, for defendant Holt..
   Hurd, J.

This action came on for trial hut the district attorney pleaded that he was not prepared and could not try the. same. Thereupon, the defendant'Vaughan demanded that the indictment be dismissed -as against him for the reason that this court had, in the month of December,, set • the case for trial peremptorily for January 4th., and had ordered that, in the event that the district attorney should not be ready to proceed, the indictment should be dismissed. On the argument of the motion the court thought that it would be an injustice to the People to summarily dismiss the indictment and it ordered a short delay; thereupon the defendants claimed that as a condition of such delay they should be allowed to withdraw their pleas of not guilty and either demur to the indictment or move to dismiss the same and they obtained leave to do so. Thereupon a motion was made to set aside the indictment upon the ground that the evidence taken before the grand jury was insufficient, even if it were all assumed to be true, to warrant the finding of an indictment, and putting the defendants to their trial.

At the threshold of the inquiry the question was made of the power of the court to set aside the indictment for the reasons assigned, and it is said that, as section 313 of the Code of Criminal Procedure confines the motion to the two grounds specified therein, that it excludes the power for any other reasons, and.the case of People v. Petrea, 92 N. Y. 128, was cited as an authority. That case certainly contains language which sustains this contention, but the remark of Judge Andrews has been so often criticised and distinguished as obiter as to lead to very serious doubt as to whether, if the question were presented as it is in this case, the section quoted would be held to exclude the ground' of motion presented now.

However it may be, there is another section (section 671 of the Criminal Code), providing for the dismissal of an indictment in furtherance of justice, and this section has been held sufficient' to warrant such an application as this by a defendant (People v. Brickner, 8 N. Y. Crim. Rep. 221), and the reasoning in the-case cited is so clear and accords so well with justice that it ought to be accepted and followed. The Criminal Code, section 258, defines the quantum of evidence required to find an indictment and an indictment without evidence or upon insufficient • evidence is invalid. People v. Brickner, supra; People v. Clark, 8 N. Y. Crim. Rep. 178; People v. Price, 6 id. 143.

A copy of the minutes of the grand jury was submitted upon the argument; a most careful reading of the minutes convinces the court that not only is there no evidence connecting the defendant with the crime charged in the indictment, but that there is no evidence at all of any crime having been committed. There was no act, fact or declaration by either defendant which could be said to be criminal proven before the grand jury.. It is, therefore) the ■duty of the court to. set aside the indictment. . • :

. The district attorney strenuously contended- that the defendants ' were guilty of the charge against-them, and claimed to have evidence . in his possession sufficient, to warrant a belief-that the de;- . f endants would be convicted. The charge was that of■“ presenting false proof of loss, in support of claim upon policy of insurance.” Penal Code, § 579. The district attorney- is the legal adviser of the county and credit must he given to his assertion. Public policy -would dictate that he should not disclose the evidence in his. possession, and, however defective the procedure in this case inay have ’ been, it would be a public calamity and misfortune that the defendants,' if guilty, should escape punishment upon a defect in' the, proof before the grand jury. It must be ’home in. mind, too, that this indictment has been pending for nearly eight, months, and that this is the first time that the sufficiency of the evidence, before- the grand jury has been challenged, notwithstanding the fact that a motion.for an inspection would have put the defendants -in posses,-sion of the evidence months ago. It cannot he said, I think, that' the defendants are free from laches. Considering, therefore, the lateness of the application and the seriousness of the charge against the defendants, the dismissal of the indictment is without prejudice to a submission of the case to the grand jury now in session..

Motion granted, without prejudice, to -another submission of the . case to the grand jury. - . ■  