123 Misc. 845 | New York County Courts | 1924
The indictment in this case charges the defendants with the crime of “ misdemeanor, conspiracy under and in violation of subdivision 4 of section 580 of the Penal Law of the State of New York,” alleging a conspiracy on the part of the four defendants, acting in concert at the city of New York to defraud the Dairymen’s League Co-operative Association of the sum of $54,458.35, by means of certain false and fraudulent reports claimed to have been made with the intent to cheat and defraud by certain false and fraudulent reports or statements concerning the use to which milk sold by the said Dairymen’s League Co-operative Association had been put, viz., that it had been used for the manufacture of butter and cheese when in fact it had been sold in liquid form. It is alleged that the difference in price growing out of the alleged use in solid form amounted to the figures indicated, and that the false statements with reference to such use had been mailed in the city of New York to the Dairymen’s League Co-operative Association at the city of Utica in Oneida county. The demurrer is upon three grounds, the first of which is “ that the alleged crime set-forth in the indictment is not within the local jurisdiction of the court, it having been committed, if at all, in the county of New York and not in the county of Oneida.” We will consider this specification first.
It is fundamental that the crime of conspiracy as charged here must consist not alone of an agreement to do some criminal act, but also of an overt act performed by the conspirators, or some of them in pursuance of their illegal agreement, tending to carry out or perform their scheme or plan. It is also fundamental that the crime can be prosecuted only in that county in which either the conspiracy was made or some “ overt act ” done in pursuance thereof was performed.
NTor do I find anything in the cases cited by defendants’ attorneys which can be said to establish a contrary view. For instance, People v. Fowler, 152 N. Y. Supp. 672, relied upon
The second specification of the defendants is this: The indictment does not conform to sections 275 and 276 of the Code of Criminal Procedure, in that it does not contain a plain and concise statement of the act or acts constituting the crime, without necessary repetition, and does not comply with the requirements of section 276 in that it fails to set forth the acts charged as" an offense, as required by law. The defendants’ counsel with great industry and ingenuity have presented fifteen specifications under this branch of the demurrer. Without going too much into detail I will consider them briefly. The claim that the specifications (in the indictment) are vague, indefinite and uncertain and in no wise specific, and that the indictment fails to apprise the defendants with what they are precisely charged, I think is untenable. While the indictment does not contain the prolixity and endless repetition and reiteration of old-fashioned criminal pleading, it seems to me that it must be held to meet the requirements of section 275 of the Code of Criminal Procedure, which was designed to simplify pleadings in criminal cases., and which I think has had the effect of rendering obsolete some of the older cases cited by defendants. There is in the indictment a statement of the crime with sufficient certainty; of the people involved in the conspiracy; of the manner of the conspiracy; of the place where it was made; of its purpose; plan and scope; of the claimed false and fraudulent reports; of the criminal intent to deceive and defraud; and I think sufficient of the details and particulars of the claimed false representations.
It is true that the exact time when the conspiracy was made is not stated any more accurately than that it was during the months of June, July and August, 1922; but in the nature of things the district attorney or the grand jury cannot, I
It is true that the indictment does not state that the defendants, or any of them, signed the claimed fraudulent reports; but it does allege that they made or caused them to be made, which is the main thing. I assume they might even have been unsigned, without altering the situation any. The next
What has been heretofore said sufficiently disposes of the third specification of the demurrer, viz., “ that the facts stated in said indictment do not constitute a crime.”
The demurrer is, therefore, disallowed.