
    COUNTY COURT—STEUBEN COUNTY,
    May 24, 1911.
    THE PEOPLE v. ORTON GUILE.
    Indictment—Motion to Dismiss.
    An indictment will not be dismissed on affidavits ol witnesses as to what they testified to before the Grand Jury.
    Motion to dismiss Indictment.
    
      James O. Sebring and W. S. McGreevy for motion;
    
      E. C. Smith, District Attorney and W. H. Nichols, opposed.
   Burrell, J.

The Defendant was Indicted on January 5, 1911, on a charge of Rape in the second degree. Was subsequently arraigned and entered a plea of not guilty. The Case was sent to this Court for trial and at the February Term following a motion was made to inspect the Grand Jury Minutes, which motion was denied. The Case has been set for trial at the present term of this Court, and a motion is now made to dismiss the Indictment under Section 312 of the Code of Criminal Procedure on the ground that the Constitutional rights of the Defendant had been invaded by the reception before the Grand Jury of illegal and incompetent evidenct,—

The affidavits read to support this motion allege talks with several of the witnesses who were sworn before the Grand Jury as to what they claim to have testified to before the Grand Jury and that in the opinion of the affiant such evidence if received by the Grand Jury was incompetent and would not tend to corroborate the testimony of the Prosecutrix as to the commission of the crime charged, and that they believe that the Indictment was found upon insufficient, incompetent and illegal evidence.

The affidavits on information and belief are very unsatisfactory so far as proving what evidence was actually received by the Grand Jury. Statements of Witnesses as to what they have testified to before Grand Juries or did not testify to is very unsatisfactory as proving what actually took place. Sometimes witnesses, will make statements as to what they testified to or did not testify to, to interested parties. Which are not in harmony with the actual testimony given; and such statements cannot always be relied upon to state the exact facts.

The affidavits are answered by the District Attorney who in his affidavit states, that there was an abundance of evidence presented to the Grand Jury in his judgment to support the Indictment. He states positively that the Prosecutrix was amply corroborated by statments and admissions made by the defendant that he had had sexual intercourse with this young lady, the Prosecutrix,—and of the promise of the Defendant to marry her and he states that the evidence before the Grand Jury by several witnesses that the Defendant acknowledged that he had illicit intercourse with this young lady at or about the date mentioued in the Indictment.

It seems to me that these affidavits show that this Indictment was found on competent and ample evidence and there is no evidence before me that if any incompetent evidence was received that it in anywise influenced the Grand Jury in finding the Indictment.

Sec. 258 of the Code of Criminal Procedure requires the Grand Jury to find an Indictment when all of the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted warrant a conviction by the trial jury.

As the case stands before me I fail to see how any of the Constitutional rights of the Defendant have been invaded, and the Indictment seems to have been found on sufficient and ample evidence.

And this motion to dismiss the Indictment must he denied.

Ordered accordingly.  