People v. Lewin , 242 A.D. 697 ( 1934 )

Order of the County Court of Kings county dismissing the indictment, discharging defendant and exonerating his bail affirmed. The district attorney is directed to resubmit the ease pursuant to the provisions of section 327 of the Code of Criminal Procedure. No opinion. Lazansky, P. J., Kapper and Tompkins, JJ., concur; Carswell and Davis, JJ., dissent and vote to reverse, on the law and the facts, the order of the County Court dismissing the indictment, to deny the motion and reinstate the indictment, with the following memorandum: Assuming, without deciding, that there was illegal evidence before the grand jury, the fact remains that there was ample legal evidence to sustain the indictment, and, therefore, the motion to dismiss should have been denied. It is not the proper function of the court to pass upon the credibility of excusatory matter that may have been before the grand jury. That is a matter for the grand jury in the first instance, and for a petit jury when the trial on the indictment is had. The excusatory matter invoked herein, as an abstract proposition of law, did not constitute to the jury a defense of perjury. (People ex rel. Hegemon v. Corrigan, 195 N. Y. 1, 13.) Whether it should be deemed sufficient defense as a fact is for a jury, unless the district attorney, in the exercise of his function and on his own responsibility, sees fit to move in open court for a dismissal of the indictment, giving his reasons therefor, founded on bis experience in respect of such matters.