
    PEOPLE v. GUILE.
    (Steuben County Court.
    May 24, 1911.)
    Indictment and Infobmation (§ 144)—Dismissal—Evidence Warranting Indictment—Sufficiency.
    The affidavit of the district attorney in opposition to a motion to dismiss an indictment for rape because the grand jury received illegal evidence, which avers that the testimony of the prosecutrix was corroborated by admissions of accused and by several witnesses testifying to such admissions, shows that the indictment was found on competent evidence within Code Cr. Proc. § 258, requiring the finding of an indictment when evidence, if unexplained, warrants a conviction, and an affidavit which discloses statements of the witnesses that they did not corroborate the testimony of the prosecutrix does not justify the dismissal of the indictment under section 312, on the ground that the constitutional rights of accused were invaded by the reception of illegal evidence.
    [Ed. Note.—For other cases, see Indictment and Information, Dec. Dig. § 144.]
    Orton Guile was indicted for crime, and a motion to dismiss the indictment denied.
    See, also, 128 N. Y. Supp. 734.
    James O. Sebring and W. S. McGreevy, for the motion.
    E. C. Smith, Dist. Atty., and W. H. Nichols, opposed.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BURRELL, J.

The defendant was indicted on January 5, 1911, on a charge of rape in the second degree. Was subsequently arraigned and entered a plea of not guilty. The case was sent to this court for trial, and at the February term following a motion was made to inspect the grand jury minutes, which motion was denied. The case has been set for trial at the present term of this court, and a motion is now made to dismiss the indictment under section 312 of the Code of Criminal Procedure ón the ground that the constitutional rights of the defendant had been invaded by the reception before the grand jury of illegal and incompetent evidence.

The affidavits read to support this motion allege talks with several of the witnesses who were sworn before the grand jury as to what they claim to have testified to before the grand jury, and that in the opinion of the affiant such evidence, if received by the grand .jury, was incompetent, find would not tend to corroborate the testimony of the prosecutrix as to the commission of the crime charged, and that they, believe that the indictment was found upon insufficient, incompetent, and illegal evidence. The affidavits on information and belief are very únsatisfactory, so far as proving what evidence was actually received by the grand jury. Statements of witnesses as to what they have testified to before grand juries or did not testify to is very unsatisfactory as proving what actually took place. Sometimes witnesses will make statements as to what they testified to, or did not testify to, to interested parties, which are not in harmony with the actual testimony given; and such statements cannot always be relied upon to state the exact facts. The affidavits are answered by the district attorney, who in his affidavit states that there was an abundance of evidence presented to the grand jury in his judgment to support the indictment. Pie states positively that the prosecutrix was amply corroborated by statements and admissions made by the defendant that he had had sexual intercourse with this young lady, the prosecutrix, and of the promise of the defendant to marry her, and he states there was evidence before the grand jury by several witnesses that the defendant acknowledged that he had illicit intercourse with this young lady at or about the date mentioned in the indictment.

It seems to me that these affidavits show that this indictment was found on competent and ample evidence, and there is no evidence before me that if any incompetent evidence was received that it in any wise influenced the grand jury in finding the indictment. Section 258 of the Code of Criminal Procedure requires the grand jury to find an indictment when all of the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.

As the case stands before me, I fail to see how any of the constitutional rights of the defendant have been invaded, and the indictment seems to have been found on sufficient and ample evidence.

And this motion to dismiss the indictment must be denied.

Ordered accordingly.  