people then proceeded to address the jury, and continued until five minutes more than his allotted time had expired, when he was called upon to stop. The time which counsel are to occupy in presenting a case to the consideration of a jury necessarily must be, to a great extent, a matter in the discretion of the court. Were it otherwise, an unlimited period might be taken without any advantage to the client, and causing great delay in the proceedings of the court, and an injury to the administration of justice. The time to be used for such a purpose must therefore be a matter to be regulated by the presiding judge upon the trial, the same as any other proceeding during the progress of the case. It is to be presumed that the court will properly guard and protect the rights of parties, so that justice can be administered to all, and the judge is certainly a competent and the proper person to determine as to the time which would be required for a proper discussion and presentation of the case upon trial. Hence it follows that the court has a right to exercise a discretion in this respect, and unless such discretion is abused, it is not the subject of review in a higher tribunal. In the case at bar, the testimony lies within a narrow compass; not many witnesses were sworn, and the questions of fact presented were not numerous. The trial was commenced, and the evidence on both sides submitted on the same day. The principal defense interposed by the defendant was self-defense, and some evidence was introduced tending to show that the defendant, at times, had been affected in his mind so as to render him irresponsible for the act done. There was, however, no direct proof that such was the case at the time of the assault for which he was tried. Upon the whole case the testimony was not very complicated, and although a difference of opinion might exist among counsel and judges, as to the period of time which would be required for the proper presentation of the case for the defendant; yet we think it cannot be said that the judge upon the trial of this case, in the exercise of his functions, and having in view the gravity of the charge and the rights of the defendant, exceeded his powers or abused the discretion with which he was invested. There is no ground for claiming that justice was not impartially administered or that the time allowed was not entirely sufficient

to cover the case under the facts developed. The fact that the district attorney exceeded the time allowed him may have arisen from inadvertence, and does not tend in any way to establish that the discretion of the judge was improperly exercised. The counsel for the defendant had the right to ask the judge to stop him when his time had expired, and not having made that objection, he has no real ground of complaint.

As no ground of error is manifest, the judgment should be affirmed.

All concur except DANFORTH, J., not voting.

NOTE.-One or two cases seem to be in opposition to the current of authority that the court has the right to limit counsel in summing up within reasonable limits.

An instance of this is the case of Hunt v. State, 49 Ga. 255; 15 Amer. Rep. 677; in which a limitation to forty minutes was held error, and it was clearly intimated that any limitation was an infringement of the accused's right to the privilege of counsel. In view of the overwhelming number of cases to the contrary, this case can have little weight. Another Georgia case (Williams v. State, 60 Ga. 367; 7 Amer. Rep. 412), lays down the rule that the length of argument is not a matter of predetermination, but that when the discussion is complete and the subject is exhausted a stop may be ordered.

The court has a right to limit by reasonable regulations the arguments of counsel. Lynch v. State, 9 Ind. 541. And this rule applies to capital State v. Collins, 70 N. C. 241; 16 Amer. Rep. 771.

cases.

On a trial for larceny where six witnesses were examined on behalf of defendant, it is error to limit arguments of counsel to five minutes. White v. People, 90 17. 117; 32 Amer. Rep. 12.

On a trial for a felony, eleven witnesses were examined, taking half a day, and the evidence being circumstantial and conflicting. Two counsel were allowed thirty minutes each to sum up. Held, error. State, 34 Ohio, 617; 32 Amer. Rep. 393; 3 Hawley Crim. 373.

Dille v.

After a trial of two days, and two adjournments of a day each, the argument was limited to five hours on each side. Held, that this was not an abuse of the power of the court. Weaver v. State, 24 Ohio, 584.

Court of General Sessions-New York County.

January, 1884.

PEOPLE v. BECKWITH.

WHEN CRIMINAL ACTION COMMENCED.-DISMISSAL OF INDICTMENTS FOUND BEFORE CODE CRIMINAL PROCEDURE.

A criminal action is commenced when the indictment is filed and becomes a record of the court.

All indictments filed previous to the time of taking effect of the Code of Criminal Procedure, must be governed by the previously existing practice and procedure.

Such an indictment cannot be dismissed by the court upon the motion of defendant under § 671 of that Code.

Motion to dismiss twelve indictments against defendant Charles R. Beckwith.

The facts appear in the opinion.

The

The indictments referred to were found against defendant, for alleged embezzlements and forgeries committed to the prejudice of B. T. Babbitt, in whose employment he was. total loss sustained by the complainant by the series of embezzlements and forgeries of which a part were alleged to have been committed by defendant, was $1,200,000. At the time of the motion the defendant was not in custody, having left the country as soon as his imprisonment on his convictions on two indictments had expired.

William Fullerton, for the motion, on behalf of defendant. -The court has power under Code Crim. Pro. § 671, to dismiss these indictments. This section applies to criminal indictments found before the Code Crim. Pro. went into effect.

Section 962 of that Code is as follows: "This Code applies to criminal actions, and to all other proceedings in criminal cases which are herein provided for, from the time it takes effect, but all such actions and proceedings, theretofore commenced must be conducted in the same manner as if this Code had not been passed." A criminal action is "The proceeding by which a party charged with crime is accused and brought to

trial and punishment." Code Crim. Pro. § 5. This motion is not a "criminal action," because defendant is not charged with crime nor is he brought to trial and punishment. Nor is it a

proceeding in a criminal case," under § 962; that is one which relates to the conduct of the case in its different stages to bring one charged with crime to trial and punishment.

The question is a new one in this State, but under a similar statute in Virginia, it was held that such a motion should be governed by the law prevailing at the time of the making the motion. Adcock's case, 8 Gratt. (Va.) 662.

But even under the law prior to the Code of Criminal Procedure, defendant is entitled to his discharge, under 2 R. S. 787 (part 4, chap. 2, tit. 5), §§ 28-30, which provides that a prisoner indicted for offenses triable in courts of sessions, or oyer and terminer, and committed to prison, whose trial shall not be postponed at his instance, shall be discharged unless brought to trial before the end of the next term of said courts held in the county in which he is imprisoned, unless satisfactory cause to the contrary be shown, in which case the prisoner may be remanded or held to bail.

The delay in bringing defendant to trial cannot be excused by the fact that the defendant was in state prison, for power to produce and try him when so imprisoned, is given by the Revised Statutes, part 4, chap. 3, tit. 3, § 158.

Peter B. Olney, district attorney, opposed to motion.— Adcock's case, 8 Gratt. 680, has no application. The law there discussed was on the effect of a repeal which it was declared "should not affect any offenses," etc., committed before its passage. It was the repeal which was not to affect. In our Code it is the passage of the Code which is not to affect. The Virginia statute is an exception in a repealing clause of a statute; the Code is a proviso that a new law shall not apply.

RUFUS B. COWING, City Judge.-The grand jury of this county, in the year 1876, found and presented to this court, fourteen different indictment against the defendant. In some, the defendant was charged with embezzlement and in the others with forgery.

Some time in the latter part of the year 1876, the defendant

was tried and found guilty, upon two of the said indictments; and was sentenced by the court, to state prison, for the term of five years on each, making ten years in all.

The defendant having served out his term of imprisonment, less commutation for good conduct, now moves the court, under section 671 of the Court of Criminal Procedure, for the dismissal of the remaining twelve untried indictments.

The district attorney opposes the motion, upon the ground, among others, that the court has no power to grant it.

After a careful examination, I have reluctantly come to the conclusion that the district attorney is right.

I have come to the conclusion, that this motion must be determined by the practice and procedure, as it existed before the first day of September, 1881, when the Code of Criminal Procedure went into effect; and that neither section 671 nor 668 of the said Code, can be invoked to aid in deciding it.

All the alleged offenses, set forth in the said indictments, were committed, and all the indictments were found and presented, and became records of this court, long before the said Code containing sections 668 and 671, went into effect. Both of said sections are new, and were not law previous to the Code.

Section 962 of the said code expressly provides, that all actions and proceedings, commenced before the first of September, 1881, “must be conducted in the same manner as if this Code had not been passed." In my judgment, a criminal action is commenced, so far as this court is concerned, when the indictment is filed, and becomes a record of this court: and it follows, that all indictments filed in this court, previous to September 1, 1881 (which is the case with all the indictments in question), must be tried in the same manner, as if there were no law in existence like that mentioned in said sections 668 and 671: or, in other words, we must be guided by the practice and procedure, as it existed previous to the Code, in the final disposition of the remaining indictments. I have failed to find any rule of law or practice, existing before the Code, giving me the power, upon a motion like this, to dismiss an indictment.

The Revised Statutes provided that the court might discharge a prisoner, who should not be brought to trial, before the end of the next term of the court held after filing the indictment.