CHAPTER VIII. Removal of the Action Before Trial. Sec. 343. Existing writs and proceedings, to remove indictment before trial abolished. 344. When, and in what cases, indictment may be removed before trial. 345. If former trial were had, indictment may be removed before the new trial. 346. Application for removal, how made. 347. Stay of trial, how obtained, to enable defendant to apply for removal. 348. Decision on application for stay, to be indorsed on papers and filed. 349. If application for stay be denied, no other application can be made. 350. Violation of last section, a misdemeanor and contempt, and order of removal to be vacated. 351. Order of removal to be filed, and pleadings and proceedings to be transmitted. 352. Proceedings on removal, if defendant be in custody. 353. Order for removal must be filed, before a juror is sworn. Authority of the court to which indictment is removed. § 343. Existing writs and proceedings, to remove indictment before trial abolished. All writs and other proceedings heretofore existing, for the removal, upon the application of the defendant, of criminal actions prosecuted by indictment, from one court to another before trial, are abolished. Notice of application to remove is unnecessary. People v. Carolin, 115 N. Y. 658. § 344. When and in what cases, indictment may be removed before trial. A criminal action, prosecuted by indictment, may at any time before trial, on the application of the defendant, be removed from the court in which it is pending, as provided in this chapter, in the following cases: 1. From a county court or a city court to a term of the supreme court held in the same county, for good cause shown; 2. From the supreme court, or a county court, or a city court, to a term of the supreme court held in another county, on the ground that a fair and impartial trial cannot be had in the county or city where the indictment is pending. Am'd L. 1898, ch. 880. Contempt. People ex rel. Munsell v. Oyer and Terminer, 36 Hun, 277; 3 Subd. 2. People v. Sammis, 3 Hun, 560; People v. Bodine, 7 Hill, 147; People v. Sharp, 5 N. Y. Cr. Rep. 155; People v. Rourke, 11 Abb. N. C. 89; People v. Sessions, 62 How. Pr. Rep. 415; People v. Baker, 3 Parker. 181; People v. Long Island R. R. Co., 4 Parker, 602; People v. Diamond, 36 Misc. 71; People v. Georger, 109 App. Div. 111; People v. Jackson, 114 App. Div. 697. § 345. If former trial were had, indictment may be removed before the new trial. If one or more trials be had, and a new trial is necessary, either by reason of the discharge of a jury without a verdict, or of the granting of a new trial, the removal may be allowed at any time before the new trial.' Removal. People v. McLaughlin, 150 N. Y. 365. § 346. Application for removal, how made. The application for the order of removal must be made to the supreme court, at a special term in the district, upon notice of at least ten days to the district attorney of the county where the indictment is pending, with a copy of the affidavits or other papers on which the application is founded. Removal. People v. McLaughlin, 150 N. Y. 365. Contents of affidavits. People v. Sammis, 3 Hun, 560; People v. Bodine, 7 Hill, 147; People v. Long Island R. R. Co., 4 Parker, 602; People v. Rourke, 11 Abb. N. C. 89. Motion, where made. People v. Sessions, 62 How. Pr. Rep. 415; 10 Abb. N. C. 192. Where witnesses are poor. People v. Baker, 3 Parker. 181 Jurisdiction of supreme court nature of order denying removal. People v. Jackson, 114 App. Div. 697. § 347. Stay of trial, how obtained, to enable defendant to apply for removal. To enable the defendant to make the application, a judge of the supreme court may, in his discretion, upon good cause shown by affidavit, make an order staying the trial of the indictment, until the application can be made and decided. Motion should be on notice; what affidavits should state. People v. Rourke, 11 Abb. N. C. 89. Stay. People v. McLaughlin, 150 N. Y. 365. 348. Decision on application for stay, to be indorsed on papers and filed. When an application for an order to stay the trial is made to the supreme court, it must indorse its decision on the affidavits or other papers presented, and cause them to be immediately filed with the clerk of the court, in which the indictment is pending. 349. If application for stay be denied, no other application can be made. If the application for an order to stay the trial has been made before one judge and denied, a similar application cannot be made to another judge. 350. Violation of last section, a misdemeanor and contempt, and order of removal to be vacated. A violation of the last section is punishable not only as a misdemeanor, but as a contempt of the court in which the indictment is pending; and that court must vacate an order of removal made in violation thereof. Misdemeanor only. People ex rel. Munsell v. Oyer and Terminer, 3 N. Y. Cr. Rep. 208; 36 Hun, 277; 101 N. Y. 251. § 351. Order of removal to be filed, and pleadings and proceedings to be transmitted. If the supreme court order the removal of the action, a certified copy of the order for that purpose must be delivered to and filed with the clerk of the court where the indictment is pending; who must thereupon transmit the same with the pleadings and proceedings in the action, including all undertakings for the appearance of the defendant or of the witnesses, or a certified copy of the same, to the court, to which the action is removed. See People v. Neff, 122 App. Div. 135, affd. 191 N. Y. 210. § 352. Proceedings on removal, if defendant be in custody. If the defendant be in custody, and the removal be into another county than that where the indictment is pending, the order must provide for the removal of the defendant by the sheriff of the county where he is imprisoned, to the custody of the proper officer of the county to which the action is removed; and he must be forthwith removed accordingly. Am'd L. 1895, ch. 880. § 353. Order for removal must be filed, before a juror is sworn. Authority of the court to which indictment is removed. An order for the removal of the action is of no effect, unless a certified copy thereof be filed, as required by section three hundred and fifty-one, before a juror is sworn to try the indictment. When thus filed, the court to which the action is removed, must proceed to trial and judgment therein. See $351, ante. See People v. Neff, 122 App. Div. 135, affd. 191 N. Y. 210. 108 § 354. Issue of fact, defined. An issue of fact arises, 1. Upon a plea of not guilty; or 2. Upon a plea of a former conviction or acquittal of the same crime. Commission to take testimony. People v. Haight, 13 Abb. N. C. 197; 3 N. Y. Cr. Rep. 60. See People v. Connor, 65 Hun, 392, affd., 142 N. Y. 130. § 355. How tried. An issue of fact must be tried by a jury of the county in which the indictment was found, unless the action be removed, by order of the supreme court, into another county, as provided in the second subdivision of section three hundred and forty-four. Am'd L. 1895, ch. 880. See 344, ante. Commission to take testimony. People v. Haight, 13 Abb. N. C. 197, 8 N. Y. Cr. Rep. 60. § 356. Appearance. If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel; but if the indictment be for a felony, the defendant must be personally present. See $ 297, 335, ante, and § 427, 434 and 681, subd. 3, post. Argument of motion. People v. Vall, 6 Abb. N. C. 206. Temporary voluntary absence from court-room. People v. Bragle, 88 N. Y. 585, affg. 26 Hun, $78. Appearance by attorney. People v. Wilkes, 5 How. Pr. Rep. 105; People v. Welsh, 88 App. Div. 65. Constant presence of defendant. Stephens v. People, 19 N. Y. 549. Pronouncing sentence. People v. Clark, 1 Parker, 360. Instructing jury. Maurer v. People, 43 N. Y. 1. Right of defendant to refuse to appear. People v. Miller, 63 App. Div. 11. § 357. Preparation for trial. After his plea, the defendant is entitled to at least two days to prepare for his tr al, if he require it. Absence of witnesses. Feople v. Vermilyea, 7 Cowen, 369; People v. Wilson, 3 Parker, 199; People v. Eighmy, 79 N. Y. 546; People v. Webster, 92 N. Y. 422. Practice on applying for postponement. People v. Horton, 4 Parker, 222. 110 |