
    The People of the State of New York ex rel. Frederick E. Weeks, District Attorney of the County of Westchester, Relator, v. The Honorable William P. Platt, Justice of the Supreme Court of the State of New York, Holding Trial Term Thereof, in and for the County of Westchester, and Thomas M. Osborne, Respondents.
    Second Department,
    June 16, 1916.
    Prohibition — when writ lies to restrain proposed action of court — indictment — grounds of demurrer — power of court to strike out scandalous and irrelevant matter not charging crime — when writ of prohibition does not lie.
    The writ of prohibition is an appropriate remedy where it specifically appears to the Appellate Division that a justice of the court having original jurisdiction is about to act beyond its legitimate powers, and in excess of its jurisdiction.
    A defendant in a criminal action cannot demur to an indictment upon the ground that on the face thereof the facts stated do not constitute a crime, if, in fact, the facts stated in any count thereof do constitute a crime, for a demurrer must lie, if at all, to the whole of the indictment.
    Hence, where one or more counts of an indictment set out a crime, the defendant cannot demur because other counts contain scandalous and irrelevant matter not constituting crime.
    Nor under the circumstances can the defendant demur on the ground that more than one crime is charged in the indictment, within the meaning of section 378 or 379 of the Code of Criminal Procedure.
    Nor does a demurrer lie under sections 375 and 376 of the Code of Criminal Procedure relating to substantial deficiencies.
    Although there is no authority therefor in the Code of Criminal Procedure, the court in its inherent jurisdiction over practice and procedure may entertain a motion to strike from an indictment scandalous and irrelevant matter not charging a crime.
    Hence, an absolute writ of prohibition will not issue to prevent a justice from striking out such matter.
    Motion by the relator, Frederick E. Weeks, to have an alternative writ of prohibition allowed by the Appellate Division, Second Department, on the 20th day of April, 1916, made absolute.
    
      William J. Fallon, Assistant District Attorney [Frederick F. Weeks, District Attorney, with him on the brief], for the motion.
    
      George Gordon-Battle [Michael J. Tierney and Huntington W. Merchant with him on the brief], opposed.
   Stapleton, J.:

The district ■ attorney of Westchester county having charge of a criminal action prays to have an alternative writ of prohibition made absolute. The alternative writ is directed to one of the justices of the Supreme Court designated to hold a trial term of the court in the county where the action is pending. The defendant in the criminal action is a party. The material facts are not disputed. The alternative writ commands that the justice refrain from proceeding on a motion made in the criminal action to strike out or set aside a count in the indictment.

In cases of extreme necessity, where no other adequate remedy exists, the writ is appropriate whenever it satisfactorily appears to the Appellate Division that a justice of the court having original jurisdiction is about to act beyond its legitimate powers and in excess of its jurisdiction. (Quimbo Appo v. People, 20 N. Y. 531; People ex rel. Jerome v. General Sessions, 185 id. 504.)

The- indictment contains. six separate counts. It is conceded that two or more counts contain plain and concise statements of acts constituting the misdemeanor which is defined in section 1841 of the Penal Law: “A public officer, or person holding a public trust or employment, upon whom any duty is enjoined by law, who wilfully neglects to perform the duty, is guilty of a misdemeanor.”

In so far as the indictment affects the last-mentioned counts, we, of course, are not testing it in this proceeding by the standards fixed by sections 278 and 279 of the Code of Criminal Procedure.

The sixth count contains no statement of acts constituting a crime. It contains characterizations that are legally meaningless in the legitimate prosecution of a criminal action, but -oppressively injurious by suggestion.

Confronted with such an indictment, what was the defendant’s proper move ? He could not demur on the ground that it appears on the face of the indictment that the facts stated do not constitute a crime, because it contains counts that did allege facts constituting a crime. Cullen, Ch. J., in People v. Rosenheimer (209 N. Y. 115, 118), said: “A demurrer must he, if at all, to the whole of an indictment.”' The learned district attorney asserts this is dictum. Certainly it is the deliberate statement of an eminent jurist and it has a solid foundation in the plain words of the Code of Criminal Procedure (§§ 323, 327). We accept it as expressive of the law.

Defendant could not demur on the ground that it appears on the face of the indictment That more than one crime is charged in the indictment within the meaning of sections 278 or 279 ” of the Code of Criminal Procedure. (Code Grim. Proc. § 323.) We have expressed our opinion that the sixth count does not state facts constituting a crime.

Defendant could not demur on the ground that it appears on the face of the indictment That the indictment does not conform substantially to the requirements of sections 275 and 276 ” of the Code of Criminal Procedure. (Code Crim. Proc. § 323.) This ground of demurrer reaches substantial deficiencies, not injurious irrelevancies. (See People v. Grutz, 212 N. Y. 72, 75.) The indictment contains the title of the action, specifying the court to which it is presented and the names of the parties. Some counts in it contain a plain and concise statement of the act constituting the crime, without unnecessary repetition, and . are pleaded in the permitted prescribed form. It is signed by the district attorney.

The other grounds of demurrer and the grounds upon which an indictment may be set aside on motion afford no relief. (Code Orim. Proc. §§ 313, 323.)

It is the design of our system of jurisprudence to give a fair trial to a defendant indicted for a crime, to guard against convictions being obtained through improper means or indirect influences, to prohibit the introduction against a defendant of evidence not tending to prove his guilt of the particular crime or crimes charged as the result of the same transaction or series of transactions, but which merely excite prejudice against him by tending to prove him guilty of an offense which could not be joined in the indictment.

The primary purpose of the - rules of pleading prescribed by the Code of Oriminal Procedure is to subject to test the sufficiency of pleadings. (Code Orim. Proc. §§ 273, 274, 275, 276, 323.) Duplicity, an ancient vice, is subjected to restraint. (Code Orim. Proc. §§ 278, 279; Id. § 323, subd. 3.)

A statement of scandalous and irrelevant matter in an indictment is of recent origin. There is no express code provision for the expunction from an indictment of harmful irrelevancies. There is in a court of record a general authority over its own records. (Barker v. Binninger, 14 N. Y. 270, 278, 280.) The Code of Oriminal Procedure is not to be deemed to have limited the power of the courts, in practice or procedure, beyond the scope of its provisions. (People v. Wilson, 151 N. Y. 403, 409. See People v. Clark, 14 N. Y. Supp. 642, 644.) The Legislature having failed to prescribe the method of expunging from an indictment containing a good count irrelevant, scandalous and prejudicial matter stated in a separate count professing to charge but not charging á crime, we are unwilling to concede that the court in which the indictment is tried is powerless to protect the defendant from so gross an injustice.

It is argued that if the power to strike out matter. in an indictment be held to exist, trial courts may err and the People have no remedy by appeal. The leg’al presumption is that every court will decide right, and conduct the proceedings before them fairly, impartially and correctly. ” (Wolfe v. Burke, 56 N. Y. 115, 119.) The right of appeal in criminal cases is purely statutory, and the Legislature has conferred appellate jurisdiction where it deemed it to he essential to promote substantial justice. (People v. Zerillo, 200 N. Y. 443.) Until jurisdiction is conferred to review intermediate orders on the appeal of the People, they must be satisfied with the determination of the court having original jurisdiction, acting within its legitimate power. Prohibition is not available. (People ex rel. Martin v. Brady, 168 App. Div. 108.)

A final order should be made against the relator, without costs, authorizing the defendants, the justice and the adverse party, to proceed in the criminal action as if the alternative writ had not been issued.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Final order made against the relator, without costs, authorizing the defendants, the justice and the adverse party, to proceed in the criminal action as if the alternative writ had not been issued.  