Opinion
April 1, 1943.
Robert Mitchell for defendant.
Frank S. Hogan, District Attorney ( Robert Reynolds of counsel), for plaintiff.
This is a motion to dismiss the indictment charging manslaughter for lack of prosecution. The defendant was indicted on October 7, 1942. He joined issue October 8, 1942, and has been awaiting trial for over five months. During this time he has been incarcerated in the City Prison. The Code of Criminal Procedure (§ 668) provides: "If a defendant. indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown."
The opposing papers state the alleged killing took place in the presence of witnesses, one of whom was last known to reside at 215 West 136th Street, N.Y., but that he has since moved away. A statement had been taken from him before he moved and reasonable time, in addition, is asked to procure him. It is the opinion of the District Attorney that he may be able to locate him in the near future. The prosecution claims that the case should not be tried without this testimony which would present a question for a trial jury.
This motion is denied upon condition that this issue be tried or otherwise disposed of by or before the end of the April, 1943, Term of this court; otherwise it is granted.