Opinion
Argued January 27, 1944
Decided January 27, 1944
Appeal from the Supreme Court, Appellate Division, Third Department, SWIFT, J.
Daniel H. Prior and Reuben H. Kohn for appellant. Nathaniel L. Goldstein, Attorney-General ( Ernest B. Morris, George P. Monaghan, Harris B. Steinberg and Herbert Stern of counsel), respondent.
In this proceeding for an order of prohibition, we may not pass upon the question whether in every instance the court correctly construed the procedural provisions of the statutes or ruled correctly upon objections or challenges. A majority of the court agree that the court did not act in excess of its jurisdiction.
The majority agree, too, that the word "case" as used in subdivision 6 of section 239 of the Code of Criminal Procedure embraces an investigation like that here in question. Where challenges by the People of individual jurors for bias under subdivision 6 of section 239 are sustained the challenged jurors cannot take part in the investigation ordered by the Governor.
The order should be affirmed.
On the petition here presented which, for the purpose of this proceeding we must accept as true, it is clear that the court summarily discharged grand jurors without challenge, for any of the causes set forth in the Code of Criminal Procedure, section 239, or without trial thereof. This was in violation of the applicable sections of the Code of Criminal Procedure.
LEHMAN, Ch. J., LOUGHRAN, LEWIS, DESMOND and THACHER, JJ., concur in Per Curiam opinion; RIPPEY and CONWAY, JJ., dissent in memorandum.
Order affirmed.