
    The People of the State of New York, Respondent, v. David J. Nugent, Appellant.
    
      Term of County Court — an indictment found at a term, of which due publication is not made, is not valid — that the order designating it purports to be made by the court is immaterial.
    
    A term of the County Court convened pursuant to an order which was not published “ once in each week, for three successive weeks before a term is held,” as required by section 356 of the Code of Civil Procedure, or “for four successive weeks previous to the time of holding the first term.under such order,” as required by section 45 of the Code of Criminal Procedure, and which fixed such a time for the holding of the- term that the four weeks’ publication required by the latter section could not be made, is improperly convened and an indictment found at such a term should be dismissed.
    
      
      Semble, that the fact that such order purported to he made by the County Court instead of by the county judge, as required by section 355 of the Code of Civil Procedure and section 45 of the Code of Criminal Procedure, did not affect the validity of the indictment.
    Appeal by the defendant, David J. Nugent, from a judgment of the County Court of Erie county in favor of the People, rendered on the 17th day of January, 1900, upon the verdict of a jury convicting him of the crime of assault in the second degree, and also from an order entered in said clerk’s office on the 15.th day of January, 1900, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 17th day of January, 1900, denying the defendant’s motion for the appointment of a commission to take testimony of witnesses, and also from an order entered in said clerk’s office on the 11th day of September, 1899, denying the defendant’s motion to set aside an indictment, and also from an order entered in said clerk’s office on the 17th day of January, 1900, denying the defendant’s motion in arrest of judgment.
    
      William B_. Hoyt, for the appellant.
    
      Thomas Penney and Frederick Haller, for the respondent.
   Williams, J.:

The indictment was found and filed in County Court July 27,1899. The defendant was arraigned July 28, 1899, and objected to such arraignment, and moved to set aside the indictment upon the ground that the court had not been properly convened, was not a court at all, because: '

1. The order convening the same 'was made by the County Court instead of the county judge, as required by the Code of Civil Procedure (§ 355) and Code of Criminal Procedure (§ 45). .

2. The order was never published as required by either section 356 of the Code of Civil Procedure or section 45 of the Code of Criminal Procedure.

The court overruled this objection and denied this motion.

The order was made in substantial compliance with the statute. The technical error in form, making it a court, instead of chamber, order, must be disregarded under the rule laid down in the cases. (Regan v. Traube, 16 Daly, 154 ; Lowerre v. Owens, 14 App. Div. 216.)

The question of failure to' publish the order needs more careful consideration. The provisions of both Codes above referred to required the publication of the order, the one at least once in each week, for three successive weeks before a term is held,” the other for four successive weeks previous to the time of holding the first term under sunh order.” Neither of these requirements was complied with in this case. Indeed the time fixed for the holding of the court was such that the four weeks’ publication of the order as required by section 45, Code of Criminal Procedure, could not be made. These provisions were made for the benefit of those having business in the courts, and especially those charged with crime and liable to indictment in the courts, and it is difficult to see how they can be entirely disregarded and yet the court be held to be properly convened, and a person who is indicted and tried therein be said to be properly so indicted and tried. A person charged with crime and who is presented to a grand jury has a right to challenge such jury, and must do so, if at all, when the jury is called and before it is sworn, or at least before the indictment is found. (Code. Grim. Proc. §§ 237-242.)

How is the party charged with crime to know that a court is to be held, and a grand jury to be impaneled, especially when the term is an extra one, unless the notice provided by the statute is given by the publication of the order for three or four weeks before the term commences ?

In Northrup v. People (37 N. Y. 203) a conviction for poisoning was set aside, the judgment reversed and a new trial ordered, because the court in which the trial was had was adjourned to a place in the county not designated for holding courts, and which had not been published as such, the court saying: “ The policy of the law is to inspire confidence in the administration of justice. It is the right of every citizen to know the times and places for holding the courts where his liberty or property may be put in jeopardy, and that would be a lax system of legislation indeed which would leave them the subjects of sudden and perhaps capricious changes. Our legislature has not so left them. They have solemnly determined that all the judges of each district shall unite in designoting the places of holding courts, and require that the appointments thus made shall be published in the State paper for three weeks before any court shall be held in pursuance of them. To sanction the court at which the' prisoner was convicted is to annul entirely all these provisions.”

This case was referred to with approval and was not questioned in People v. Sullivan (115 N. Y. 191).

" It is said, however, that this error may be overlooked and disregarded under the doctrine laid down in some recent cases in the Court of Appeals.

People v. Petrea (92 N. Y. 144) and People v. Hooghkerk (96 id. 153) were cases where objection was made not to the court itself, bul to the grand jury that found the indictment on which the defend* ant was tried. It was claimed that the law under which the grand jurors were drawn was unconstitutional. The court said in the Petrea case: “We are of opinion that no constitutional right of the defendant was invaded by holding him to answer to the indictment. Tha grand jury, although not selected in pursuance of a valid law, were selected under color of law and semblance of legal authority. Tha defendant, in fact, en joyed all the protection which he would have had if the jurors had been selected and drawn pursuant to the general statutes. Nothing could well be more unsubstantial than the alleged right asserted by the defendant under the circumstances of the case. He was entitled to have an indictment found by a grand jury before being put upon his trial. An indictment was found by a body drawn, summoned and sworn as a grand jury, before a competent court and composed of good and lawful men. This, we think, fulfilled the constitutional guaranty. The jury which found the indictment was a defacto jury selected and organized under the forms of law. The defect in its constitution, owing to the invalidity of the law of 1881, affected no substantial right of the defendant. We confine our decision upon this point to the case presented by this record, and hold that an indictment found by a jury of good and lawful men, selected and drawn as a grand jury under color of law, and recognized by the court and sworn as a grand jury, is a good indictment by a grand jury within the sense of the Constitution, although the law under which the selection was made is void. It ' will be time to consider the extreme cases suggested by counsel when occasion shall arise.” This doctrine is startling enough to the common legal mind, but it does not reach the question involved in the present case. It merely holds we may have a de facto grand jury. It does not go to the extent of holding we may have a de facto court. The court was a competent one, properly convened. The conviction upheld in the case was for grand larceny. The Hooghkerk case, so far as this question was concerned,, was practically the same. It was a conviction for arson.

People v. Herrmann (149 N. Y. 190) and People v. Pustolka (149 id. 510) were cases in which the claim-was made that the justice who held the court and tried the cases in the first department was not authorized to hold the court because he was a justice of the second department. .It was held that a justice of the Supreme Court could hold a court in any county of the State. Of course this decision has no application to the question we are here considering.

People v. Youngs (151 N. Y. 210) was a capital case, and the question was whether the- term of the court: at which the indictment was found and the trial took place had been properly appointed. Section 232 of the Code of Civil Procedure provided that the justices of the Appellate Division in each department might fix the times and pilaces for holding Trial Terms therein, and assign the justices to hold the same or make rules therefor, and if they had not done so before December first in 1895 and every second year -thereafter, then the trial justices of each department or a majority thereof make such appointments and designations, and if for any reason such appointments were not made before the expiration of the time so specified,, they be made, at the earliest convenient time thereafter. And then section 233 provided for the publication of the appointments and designations once in each week for three successive weeks before the holding of a term in pursuance thereof. The justices' designated to sit in the Appellate Division commencing January 1, 1896, on the 3d day of December, 1895, made the appointments and designations ">f which the term in question was one, and was to convene January 20, 1896. On the.' 1st day of January, 1896, the justicés reap.pointed the same terms and redesignated the same justices to hold them. The indictment was found and filed and the defendant was. tried and convicted at the January 20, 1896, term. There appears to have been no question raised as to the proper publication of the appointments and designations. The court held:

1. That the justices after their designation, but before January 1, 1896, had power to make the appointment and designation of the term.

2. That they had power to do this after December 1, 1895,' and on the 3d day of December, 1895.

3. That any irregularity occurring before J anuary 1, 1896, was . cured by reappointment and redesignation on that day.

4. Even if such appointments and designations were not made in strict compliance with the Constitution or statute, the objection would not avail to the defendant, the court having been appointed by the body which the Constitution and statute had designated for that purpose. The grand jury was a de facto one under People v. Petrea (92 N. Y. 128).

While we have no desire to criticise this decision or refuse to be governed by it, so far as it decided any question involved therein, we have nevertheless examined the case with considerable care by reason of the somewhat remarkable suggestions in the opinion as indicated in our 4th subdivision above, that even if there was not a strict compliance with the Constitution (Art. 6, § 2) or the statute in calling into life the court which found the indictment and tried and convicted the defendant of a capital offense, still he could not avail himself of any objection thereto. The opinion says the jury might be regarded as a good one de facto, but does not go so far as to say that the court could be upheld as a court de facto, though brought into existence in disregard of the Constitution and the statute. We do not see that any such question is involved in that decision. The court had disposed of the whole question, involved necessarily in the case, in holding, as indicated in our first three subdivisions above, and we cannot extract from the decision as a whole any doctrine to support the claim that a court can, as against the objection of a defendant on trial for his life, be regarded as a good court de facto where the statute and the Constitution, so far as the latter is applicable, are not substantially complied with in appointing it to be held and giving notice thereof. The Constitution does not apply to the appointment of terms of County Courts; the provisions for this purpose are found in the statute. These provisions should be complied with, and one of the essential prerequisites to the holding of a legally-constituted term is the publication of the order appointing-the same as provided for by the statutes of the State. - No question of notice was involved in the Toxmgs case. The N'orthrup case seems to be an authority directly upon the point we are considering and never to have been overruled or criticised even. In a case of this kind it would be an unsafe rule to hold that a county judge, who lias the sole power and authority to appoint the times for holding County Courts, should be permitted to appoint and hold such courts at his own will, disregarding the statute, and making appointments for such times as to render a compliance with the statute as to publishing the order impossible. Such a rule would enable a county judge, in times of public excitement, to call a term of his court into existence without ^.ny notice to persons charged with crime; and thus seriously interfere with their rights' under the. Constitution and the laws of the State. We think the court was in error in denying, defendant’s motion to dismiss the indictment in question, requiring him to plead thereto and to stand his trial thereon. .

The conclusion Ave have reached with reference to the court itself renders it unnecessary to examine or pass upon the other errors - alleged to have been committed after the filing of the indictment and during the trial.

The court not having been properly convened and held, the indictment was invalid, as were all the proceedings had by the court.with reference thereto.

The order denying the motion to set aside the indictment should be and the same is reversed, and the motion granted and the indictment set aside, solely upon the ground that the court Avherein it Avas found was riot legally organized and convened, and the case be resubmitted to another grand jury; and that the judgment aiid conviction appealed from be and the same are, therefore, reversed and set aside, without examining the facts or considering any other question in the case.

All concurred, except McLennan and Spuing, J-I., who concurred in reversal of judgment and conviction on the ground that the trial court committed error in refusing to allow defendant’s counsel to examine that part of the minutes of the grand jury used by the district attorney in his examination of witnesses, but are óf the opinion that the court at whicn the indictment was found was legally organized and convened, and that there being no question as to the legality of the court in which the indictment was tried, the alleged defect in finding the indictment is not available to the defendant.

Order denying motion reversed and indictment set aside, solely upon the ground that the court wherein it was found was not legally organized and convened, the case to be resubmitted to another grand jury. Judgment and conviction appealed from reversed and set aside, without examining the facts or considering any other question.  