
    (69 Misc. Rep. 555.)
    In re BALDWIN.
    (Saratoga County Court.
    October 31, 1910.)
    1. Criminal Law (§ 627%)—Minutes of Grand Jury—Eight to Inspection.
    Ordinarily an application by accused before trial to inspect the minutes of the grand jury by which he was indicted will be denied.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1481; Dec. Dig. § 627%.*]
    2. Criminal Law (§ 627%*)—Minutes of Grand Jury—Right to Inspection.
    Where a conviction for attempted rape on a child of four was reversed: by the Appellate Division, presumably because the testimony of prosecutrix was not sufficiently corroborated, an application by accused before a new trial to examine the minutes of the grand jury, on the ground that his constitutional rights had been violated, in that he believed the indictment had been found on improper evidence, will be granted.
    [Ed. Note.—For other cases, see Criminal Law, Cent Dig. § 1431; Dec. Dig. § 627%.*]
    Application by William Baldwin for inspection of the minutes of the grand jury by which he was indicted.
    Application granted.
    See, also, 65 Misc. Rep. 153, 121 N. Y. Supp. 86; 126 N. Y. Supp. 806.
    Robert W. Fisher, for the motion.
    William T. Moore, Dist. Atty., opposed.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   ROCKWOOD, J.

William Baldwin was indicted by the grand jury of Saratoga county for the crime of assault in the second degree and attempted rape. He was convicted upon a trial, and sentenced to the state prison at Dannemora. An appeal was taken from the judgment of conviction, and in June, 1910, the Appellate Division of the Third Department reversed the judgment, remanding all proceedings to the Saratoga County Court and directing a new trial. 139 App. Div. 404, 124 N. Y. Supp. 433. It seemed to be the opinion of the Appellate Division that the testimony of the four year old prosecutrix was not sufficiently corroborated upon the trial.

The defendant now moves upon affidavits for an order granting him permission to inspect the minutes of the grand jury upon which the indictment was based. It is alleged in the moving papers that the indictment was not found upon legal evidence, and that by reason thereof the constitutional rights of the defendant have been invaded.

Ordinarily this court is opposed to the granting of a motion for inspection of the minutes of the grand jury, and the denial of such motions is sustained by the weight of the adjudicated cases and orderly procedure in criminal practice. People v. Steinhardt, 47 Misc. Rep. 256, 93 N. Y. Supp. 1026.

The papers in this case do not specify with particularity the alleged constitutional right of which it is claimed the defendant has been deprived; but, entirely aside from the technical objections, the court is convinced that the motion should be granted upon the merits.

The case has bhen fully tried before a jury, and the testimony of all the witnesses who were sworn before the grand jury has been given in open court. These witnesses have been examined and cross-examined. Presumably their testimony before the grand jury did not differ, or at least was no stronger against the defendant than the testimony given upon the trial.

This application is to be distinguished from one made after indictment and before trial, at which tipies the practice has uniformly been to deny the motion for inspection of the minutes.

Following the decision of Judge Crain in People v. Teal, 60 Misc. 517, 113 N. Y. Supp. 925, and believing that the defendant in all justice is, at this time, entitled to inspect the minutes of the grand jury, the motion is granted.  