
    MCFARLAND’S CASE.
    
      Court of General Sessions of the City and County of New York;
    
    February, 1870.
    Removal of Indictment.
    The court of general sessions of New York will not transfer to the oyer and terminer indictments found in the sessions, except on motion, and on notice to the district-attorney, or the accused, as the case may be.
    A motion for such transfer will be denied on the objection of the adverse party, unless, upon argument, a proper case for the exercise of the discretion of the court is shown.
    Motion by the district-attorney to transfer the case to the oyer and terminer.
    The defendant was indicted in the court of general sessions, on the 17th day of December, 1869, for the murder of one Albert D. Richardson. He was arraigned on the indictment, and pleaded not guilty. Subsequently, and on the 28th day of January, 1870, the court of general sessions on his motion entered an order, directing two several commissions to issue, to examine foreign witnesses in his behalf.
    
      Samuel B. Garvin, district-attorney, for the motion to transfer.
    
      John Graham, (with whom were Elbridge T. Gerry and Chas. S. Spencer), in opposition.
    I. This application is made too late. There is an issue joined by the plea to the indictment. The statute provides for the transfer of the indictment only.
    II. The defendant has a vested right to be tried in the court of general sessions. (1.) The district-attorney selected that court as the tribunal, arraigned him before it, and he pleaded on that arraignment, and thus acquiesced in its selection. (2.) In the event of his conviction in the court of general sessions, the appellate tribunal has, by statute, the power to review the conviction on the facts (3 Rev. Stat., 5 ed., 311). That power does not exist in the event of the trial being held in the o;7er and terminer (McKee v. People, 36 N. Y., 113; Quimbo Appo v. People, 20 N. Y., 531). (3.) And should such a conviction occur in the general sessions he would be entitled to a stay on writ of error as of course ; whereas, in the oyer and terminer he might have to beg for mercy on his knees before some judicial iceberg.
    III. Besides, the transfer at the present time of the case to the oyer and terminer would vitiate the commissions to take testimony directed by the general sessions to issue, and would contract his rights thereon. (1.) He was entitled to those commissions as matter of right, by statute (3 Rev. Stat., 5 ed., 1023). (2.) By such transfer, the court issuing the commission has not at the time of its execution any jurisdiction of the case, and the oath which the witness takes becomes a purely voluntary one, and does not subject him to the legal penalties for perjury. (3.) This difficulty is not cured by any stipulation of the district-attorney, for that only converts the oath into an obligation created by consent of parties.
    IY. The statute itself does not authorize the compulsory removal of this case. (1.) Prior to 1855, the grand jury could indict in the general sessions for all felonies and misdemeanors ; but that court was obliged to send those of a higher grade of felony to the oyer and terminer for trial (3 Rev. Stat., 5 ed., 303). (2.) In 1855 (Laws of 1855, ch. 337), the legislature conferred on the court of general sessions the power which previously the oyer and terminer alone possessed ; but while it authorized the oyer and te: miner to send all indictments to the general sessions, it did not, e converso, authorize the latter court compulsorily so to act, and the case is a casus omissus under that statute.
    
      
      District-Attorney Garvin insisted ;
    I. Although it was true, an order had been duly entered authorizing the commissions, yet it contained no stay, and the commissions had not yet issued, nor had the interrogatories been settled.
    II. While the sixth section of the statute (3 Rev. Stat., 5 ed., 303) is compulsory only as to indictments not triable in the general sessions, the next section allows that court, in its discretion, to send all indictments to the oyer and terminer.
    III. The construction of this statute is settled in People v. Gray (10 Wend., 509). The trial of this cause may materially interfere with the other business of the general sesions.
    
      John Graham, in reply.
    I. There is no necessity for
    the oyer and terminer and the judges of the supreme court trying these cases. They had better free the city prison by trying the ordinary criminals, and let the general sessions attend to its more important cases. The latter court can easily (if need be) hold two sessions in place of one.
    II. Assuming the general sessions to have the power claimed, its exercise is discretionary. And in the present case it is invoked simply to gratify a preference of the district-attorney, while the prisoner’s rights are shown to be impaired thereby.
    III. Where' an order for commissions is applied for with due diligence, and granted, the court will not nullify its own order, but will protect the prisoner’s rights by granting a stay, whenever necessary to secure to him the benefit of the evidence under the .commission.
    In Gray’s Case {supra) the indictment was found in the oyer and terminer, thence sent to the general sessions. Bail having been taken in the oyer and terminer to appear at the general sessions, and the latter court having respited the bail to the oyer and terminer on remitting the indictment, and the bail having then been forfeited, the question arose in a civil action against the bail, whether the general sessions had the power so to remit the indictment, and respite the bail. And the supreme court so held.
    V. It is vital to the prisoner that his judge, as well as his jury, should be unobjectionable ; for the former virtually takes part in the impanneling of the latter by the appointment of triers to pass upon objections for cause.
    (1.) The law allows the prisoner to challenge peremptorily a certain number of jurors, without assigning a reason. He may take umbrage at some of them, owing to their faces ; and the law permits him to object absolutely to their becoming a part of the jury on that ground, without compelling him to expose publicly so ungracious a reason.
    (2.) An individual about to be placed on trial for a crime may entertain the same feelings in reference to the faces of the judges. This is an instinctive emotion to which we are all liable. It may be that the prisoner prefers the humane and benignant countenances of the judges of this court, to the iron-visaged faces he might meet with upon the bench in another tribunal.
    (3.) While he cannot object to his judges as he can to his jurors, when he is perfectly satisfied with the court first selected by the prosecuting counsel, he should not be forced at the mere whim or caprice of that officer into another, not superior to it in dignity, power, or intelligence ; especially when it is apparent tiiat it would be with the loss of some of his most important rights.
   By the Court.—Bedford, City Judge.

The district-attorney moves to transfer to the oyer and terminer certain indictments found in this court.

The power of tranferring to and fro is a proper jurisdictional one of either of said courts (People v. Shepard, 11 Abb. Pr., 59). It is one of discretion. I think the power should never" be exercised without public motion, and on notice to the district-attorney, if proposed by one under indictment; or if proposed by the district-attorney, on notice to the adverse counsel or party.

In one of the cases asked to be transferred, the counsel for defendant raises certain objections. Criminal cases are now too much burdened with questions naturally arising, to have unnecessary ones raised that may additionally embarrass their due disposition. I shall, therefore, decline to transfer the McFarland case, in which the objection is made. I will transfer any case in which both district-attorney and the accused, or by his counsel, agree in writing to the transfer; but if either object, I would like to be informed on argument •of the reasons pro and con before exercising discretion.

After arriving at this decision, I consulted with my colleague, Recorder Hackett, whose views with regard to this question I will here mention fully coincide with my own, as above seated.  