
    Court of General Sessions, New York County.
    October, 1902.
    THE PEOPLE v. MICHAEL E. FOODY.
    (39 Misc. 142.)
    1. Motion Before Trial to Dismiss Indictment Against Public Officer on Minutes of Grand Jury.
    A motion, on the minutes of the grand jury, to dismiss an indictment against a police captain for wilful neglect of duty will not be granted where the court cannot say, as a matter of law, that the evidence was not sufficient to justify the grand jury, and where there is evidence, the force and weight and the credence to be given it, is for the jury alone and not for the court.
    2. Same.
    Where there appears to be a very general suspicion of police officials, an indictment by a grand jury of such officers ought not to be disposed of on a motion addressed to the discretion of the court.
    Motion to dismiss an indictment, pursuant to section 671 of the Code of Criminal Procedure.
    Black, Olcott, Gruber & Bonynge, for motion.
    William Travers Jerome, district attorney, opposed.
   Eosteb, J.:

Though this motion was argued before me in July last, the papers did not reach me in completed form until October 24, 1902.

The defendant is; a captain of the police force of the city of Hew York, and moves on the minutes of the grand jury to' dismiss or set aside; the indictment herein on the ground that it was found upon insufficient evidence. This; indictment is for willful neglect of duty. The evidence before the grand jury is not as clear and convincing as might he desired, yet I must deny this motion for two reasons;, which, because of the importance of the case, ought, perhaps, he briefly stated.

First. I cannot aay, as a matter of law, that the evidence was not sufficient to justify the grand jury in their view of it. If there is evidence, then the force and weight and the credence to' be given it is for the jury,alone and not for the: court.

Second. The defendant is: a public officer, a captain of police. There appears to be 'a very general suspicion of police officials, though whether well grounded I neither know nor declare, and for this 'reason, if for none other, this accusation, made by the grand inquest of this county under the solemnity of their oaths, ought not to be disposed of on a motion addressed to the discretion of the court.

On this subject I said in People v. Spolasco (15 N. Y. Crim.), and it applies as well here: “ Public interests and the furtherance of justice alike, require the publicity of a trial, so that the whole truth as to these serious accusations may be known to all men.”

The motion here made may be asi well determined on trial as before, and my decision in no way prejudices and is in no way intended in any manner to prejudice any of the defendant’s rights, nor to permit the People, when a like motion shall be made at the trial, to assert it is res adjudicata.

Motion denied.  