#### The People of the State of New York, Respondent, *v.*Richard Davis, alias Richard Tobin, Appellant.

Second Department,

July 31, 1914.

Crime — indictment — failure to procure order of resubmission after demurrer has been sustained.

Where a demurrer to an indictment has been sustained, a second indictment for the same crime cannot be lawfully found without procuring an order of resubmission as authorized by the Code of Criminal Procedure.

Where upon the trial of a defendant his counsel objected that the indictment had been found illegally in that the grand jury was without jurisdiction because a demurrer to a prior indictment for the same offense had been interposed and no order for resubmission granted, and the records of the court and the testimony of an assistant district attorney substantiate this contention, a judgment of conviction should be reversed.

Appeal by the defendant, Richard Davis, from a judgment of the County Court of Queens county, rendered against him on the 9th day of February, 1912, convicting him of the crime of burglary in the second degree, committed as a second offense, and also from an order entered in the office of the clerk of the county of Queens on the 31st day of October, 1912, denying the defendant’s motion for a new trial.

*Eugene N. L. Young,*for the appellant.

*W. J. Creamer [Matthew J. Smith District Attorney,*with him on the brief], for the respondent.

Jenks, P. J.:

When the district attorney moved the trial, the defendant at once objected that the indictment was found illegally and without authority of law, in that the grand jury was without jurisdiction because theretofore, on November 28, 1911, when an indictment for the same offense was moved for trial and a jury was sworn, a demurrer interposed upon the ground that the facts stated in said indictment were insufficient to constitute the crime charged was sustained, and after such decision no order for resubmission was granted. The district attorney was mute, the court ruled “Motion denied,” and *663an exception was taken. The defendant then objected to the swearing of a jury upon the ground that the defendant was again placed in jeopardy of his constitutional rights. The court ruled *“*Motion denied,” and an exception was taken. Objection was renewed to proceeding with the trial of the indictment. The defendant refused to plead, and the court directed the entry of a plea of not guilty. The court then tried the case with a jury, and the defendant was convicted and was sentenced. When the People rested the defendant moved to dismiss the indictment and for a direction of acquittal, both upon the grounds theretofore raised, which I have detailed, and also for a failure of proof, but the motion was denied under exception. Thereupon the defendant called to the witness stand an assistant district attorney, who testified that he had held such office on November 28, 1911; that on November 28, 1911, he had moved for trial a certain indictment specified against the defendant for burglary committed on July eighth upon the premises of P. F. Reilly; that a jury was sworn and that a mistrial was declared, and that on the same day the grand jury found the indictment upon which this defendant was then on trial. The witness was then asked this question: “ Q. And that on the same day the District Attorney of Queens County went to the Grand Jury room and obtained indictment No. 3435 now being tried in this court ? A. From the records of the office I have that information. Q. Was any order of re-submission obtained by the District Attorney from the County Judge authorizing or directing a re-submission of-the charge of burglary against Richard Davis on the house of Reilly obtained ? A. Based on the information which I have obtained in the office I answer no. Q. There is no such order in existence to your knowledge ? A. Not to my knowledge.” Thereupon the defendant read into the record that it appears from the records of this court that the defendant was tried on the 28th day of November, 1911, that on motion of defendant’s counsel the trial was declared a mistrial and that on December 7, 1911, on motion of the district attorney, the indictment was ordered dismissed. The defendant also moved, but without avail, to have the verdict set aside and for a new trial on various grounds.

*664In *People*v. *Rosenthal*(191 N. Y. 394, 401) the court say: “The defendant was not put in jeopardy by the first indictment, as he was not arraigned thereunder, nor did he demur or plead thereto. If he had demurred and the demurrer had been sustained, a second indictment could not have been lawfully found without an order of re-submission as authorized by the Code of Criminal Procedure, which has'modified the practice at common law in this regard to some extent. (Code Or. Proc. §§ 321, 329.) By the express command of the statute a judgment sustaining a demurrer is a bar to á further prosecution for the same offense unless such an order is made.” I think that the record sufficiently shows that after the first indictment was found a demurrer was interposed successfully, and that there was no order for a resubmission made. The statement of the defendant was not challenged by the People; it related to matters of record in the minutes of that court, and it was substantiated, at least in part, by the testimony of the public officer who had charge of the prior trial. It is not contended upon this appeal that the facts were otherwise. Plainly these statutory provisions, considered in *People*v. *Rosenthal (supra),*are “for the benefit of the accused,” and, therefore, confer “ a substantial right which cannot be disregarded without his consent.” *(People*v. *McQuade,*110 N. Y. 284, 294.) I think that the motion was in substance to set aside the indictment, and that, therefore, a fatal point was properly and was duly made. (Code Grim. Proc. § 312.)

I advise that the judgment of conviction be reversed and a new trial be ordered.

Burr, Carr, Eioh and Putnam, JJ., concurred.

Judgment of conviction and order of the County Court of Queens county reversed, and new trial ordered.