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People v Gillette. Points of Counsel | |
| Appellant's Point XII | |
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The Court which held this trial was not organized according to the Constitution of the State and had no jurisdiction or power to try the defendant or pronounce the judgment of death against him.
The term of the Court, at which the indictment was presented and the trial took place, was an extraordinary term appointed and called by the Governor, who also designated the Justice to hold it. No appointment of the term or designation of the Justice to hold it was made by the Justices of the Appellate Division or by any power or authority other than the Governor. (Case vol. 1, folios 11, 418-427.) The defendant duly raised this point on the motion for a new trial and by a motion in arrest of judgment. (Case vol. 1, folios 409 and 435.) The appointment of this term and the designation of the Justice was under the provisions of Section 234 of the Code of Civil Procedure. By the Constitution of the State of New York, Section 2 of Article Six, provision is made: "The Justices of the Appellate Division in each department shall have power to fix the times and places for holding special and trial terms therein and to assign the Justices in the departments to hold such terms or to make rules therefor." This section was amended with the language in it at the popular election of 1899. Section 234 of the Code of Civil Procedure was adopted in 1895. The Constitution of the State nowhere provides for any other method of calling trial terms or designating a Justice to hold them than the section quoted. It is respectfully submitted that when the Constitution prescribed the method by which trial terms of the Supreme Court should be appointed and the Justice to hold them designated, it superceded a mere statutory provision on that subject. The Constitution by this provision takes away the right of the Legislature to provide for or establish a method for the appointment of a trial term or the designating of a justice to hold it. If the organic law of the state provides that the defendant was entitled to have the court which was to hear his case and the justice who was to preside at his trial selected by the justices of the Appellate Division in which his trial takes place, it is an invasion of his fundamental rights to force him to trial and judgment in a court appointed and designated by the Governor of the state. This constitutional right could not be waived and was not waived by the, defendant, although he may in the first instance, have submitted to proceeding with the trial without objection. It is well understood in law that no such a waiver as that can obtain. Appellant's Point XIII The judgment of conviction and punishment by death should be reversed and a new trial ordered. All of which is respectfully submitted. CHARLES D. THOMAS and ALBERT M. MILLS, Attorneys for the Defendant and Appellant. | |
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 The Historical Society of the Courts of the State of New York
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