160 N.E. 357 | NY | 1928
The relator is charged to be a fugitive from the public justice of the State of North Carolina. A requisition for his rendition has been honored by the Governor of New York. His discharge has been ordered upon the return to a writ of habeas corpus. The question is whether there has been a sufficient charge of crime.
The relator is under indictment in North Carolina for the crime of conspiracy. He is also under indictment for the crime of larceny in obtaining property from one Clemmons by the aid of false pretenses. There is an affidavit charging him with a similar crime in fraud of one Sellers. As to the second and third charges the courts below have held that at the times when these crimes are said to have been committed, the relator was in New York, and hence immune from extradition as a fugitive from justice (People ex rel. Corkran v. Hyatt,
The following is the indictment thus found to be inadequate:
"SUPERIOR COURT, OCTOBER TERM A.D. 1925
"STATE OF NORTH CAROLINA, | Brunswick County. |
"The Jurors for the State Upon Their Oath Present, That Thomas H. Hayes and R.J. Anderton late of the County of on or about the 30th day of October, in the year of Our Lord one thousand nine hundred and twenty-three, with force and arms, at and in the County aforesaid, did unlawfully and wilfully, wickedly, designedly, with deceit, and intent to defraud by divers false pretenses and undue means, did conspire and agree to, and with each other, and with other parties, to the Jurors unknown, to deceive and defraud The Fisheries Products Company, a corporation, or its stockholders present and prospective, and pursuant to said unlawful agreement and conspiracy, did commit various and sundry overt acts at and in said County, against the form of the statute in such case made and provided, and against the peace and dignity of the State.
"KELLUM "[SEAL] Solicitor "A True Copy "(Signed) A.T. McKEITHAN, CSC."
The question decisive of this appeal is not whether the indictment of the relator is sufficient as a criminal pleading. The question is whether "the fugitive has been in fact, however inartificially, charged with crime in the state from which he has fled" (Pierce v. Creecy,
We cannot say of this indictment that it is inadequate in a "broad and practical sense" (Pierce v. Creecy, supra, p. 402) to state the substance of a charge of crime. In so holding we assume that it is subject to demurrer under the rules of criminal pleading prevailing in New York. The test, of course, is different. The test is rather this, whether the substance of criminality is lacking altogether when substance is determined by any standard of penal justice that can rationally be supposed to prevail in the demanding jurisdiction. The main defect is said to be the failure to define the unlawful means whereby the conspirators combined to effectuate their purpose to defraud. The necessity for such an averment, if it be assumed, is one of the niceties of criminal pleading. Courts in different jurisdictions have solved the problem differently. The solutions have been coupled with distinctions and exceptions. In this State, the subject had its first consideration in the early case ofLambert v. People (9 Cow. 578). SAVAGE, Ch. J., in the Supreme Court held an indictment good, though the aim of the conspiracy was not criminal and the means were stated generally to be unlawful without other definition. There was much discussion of the ancient learning with its subtle distinctions between cheats and false pretenses. On appeal to the Court of Errors, the court was equally divided. SPENCER, Senator, wrote that the indictment was bad, and STEBBINS, Senator, that it was good. The President gave a casting vote with the result that the indictment fell. The closeness of the division attests the measure of the doubt. The courts of England have held differently (Rex v. Gill, 2 B. Ald. 204; Sydserff v. R., [1847] 11 Q.B. 245; 9 Halsbury, Laws of England, *243
p. 709, § 1401; cf. People ex rel. Lawrence v. Brady,
If there is need to emphasize the conflict, the emphasis is found when we turn to the courts of North Carolina, the courts of the demanding State. We find there a series of decisions holding, or seeming to hold, that an indictment for conspiracy to defraud is not subject to demurrer for its silence as to the means (State v. Howard,
Two cases in this court are cited in support of the contention that the indictment is subject to a closer *244
scrutiny (People ex rel. de Martini v. McLaughlin,
The order of the Appellate Division and that of the Special Term should be reversed, the writ dismissed, and the relator remanded.
POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Ordered accordingly. *245