
    County Court—Kings County.
    January, 1897.
    PEOPLE v. HARRY E. VAUGHAN.
    Í. Criminal law—Motion to sét aside indictment.
    Section 671 of the Criminal Code is sufficient to warrant an application to set aside the indictment upon the ground that the evidence taken before the grand jury was insufficient, even though it was all assumed to be true, to warrant the finding of an indictment and putting the defendant to his trial.
    2. Same—Indictment.
    An indictment without evidence or upon insufficient evidence, is invalid.
    
      3. Same.
    Where there is no act, fact or declaration by defendant, which can be said to be criminal, proven before the grand jury, it is the duty of the court to set aside the indictment.
    4. Same—Resubmission. • . !
    Where the district attorney strenuously contends that the defendant is guilty of the charge against him and claims to have evidence in his possession sufficient to warrant the belief that the defendant will be convicted, and the defendant is not free from laches, the dismissal of the indictment should be without prejudice to a resubmission of the same to a grand jury which is in session.
    Foster L. Backus, Dist. Atty. (Walter O. Miles and Henry S. Davis, of counsel), for the People.
    Friend, House & Grossman (Moses H. Grossman and Robert H. Elder, of counsel), for defendant Vaughan.
    Herbert T. Ketcham, for defendant Holt.
   HURD, J.

This action came on for trial but 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 4, and had ordered that, in the event that the district attorney should not be ready to proceed, the indictment should foe dismissed. On the argument of the motion the court charged 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 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 ot-her reasons, and the case of the People v. Petrie, 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. R. 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 Crim. R. 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 defendants 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 defendants 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 be given to his assertion. Public policy would dictate that he should not •disclose the evidence in Ms possession, and however defective the procedure in this case may 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 borne in mind, too, that tMs 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 possession -of the evidence, months ago. It cannot be said, I tMnk, 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. An entry will be made upon the minutes accordingly.  