52 N.Y.S. 101 | N.Y. Sup. Ct. | 1897
The defendant is charged by indictment with having violated section 443 of the Penal Code, relating*, to' mock auctions. A motion is now made on his behalf to dismiss the indictment on the ground that the evidence presented to the grand jury was insufficient to authorize it.
The motion must be granted.
There was illegal evidence received by the grand jury of such a character that it may well have influenced that body toward finding an indictment upon the specific charge made. The charge being that the ■ defendant unlawfully sold at public auction a china plate in violation of section 443 of the Penal Code by selling the same to himself under a fictitious name, evidence was received by the grand jury, and presumably considered by it, to the effect that he was in the habit of committing this offense by striking off goods to. the name Lohring, that being a fictitious' name representing himself. This evidence was clearly improper. ETo one should be indicted because accustomed to commit crime, nor should evidence of such fact be permitted to influence the mind upon a question whether a particular crime has been committed. Only legal evidence can
There was not sufficient legal evidence to authorize the finding of .this indictment. The only legal evidence before the grand jury was that of one O’Gorman, who testified- that he was formerly an employee of the defendant, that “ on one occasion a. set of plates was knocked down Fo Lohring,” and that he (the witness) after-wards took one of these plates to. the defendant’s house- and left it there. Eliminating the illegal evidence above referred to, there is nothing, whatever showing, or tending to show, that Lohring was a fictitious person, or that that name represented the defendant, nor that the plates were sold by the defendant to himself under that name.. That one of these plates was afterwards taken toi defendant’s house and left there is a fact as consistent with innocence as guilt. It did not even appear that this was done at his instance. It may well be, so far as any legal evidence before the grand jury is concerned, that the plates iwere struck.off to a real bidder who afterwards presented the defendant with one, or sent it to his house, without his knowledge. The presumption of innocence prevails, as much in the grand jury room as elsewhere, and-the evidence before that body must be such-as to clearly overcome that presumption before an' indictment can properly be found. It is, therefore, clear to my mind that the grand jury must have given effect to- the illegal evidence received, inasmuch as without it there is no evidence that Lohring and defendant were .one and the same person, nor that the defendant struck off the plates to himself. The legal evidence received does not indicate.a Crime. It is only by suppler menting it with the improper and illegal evidence that it is made to appear that a crime has been committed..
There is, in my opinion, another reason for granting this motion. There was no evidence before the grand jury of the time of the commission of the crime charged. Section 142 of the Code of Criminal Procedure declares that “An indictment for a misdemeanor must be found within two years after its commission.” The only exception to this requirement is-found in section 143, which provides that no time during which the accused is not an inhabitant
The first inquiry must be, was the crime committed within two years? If it was not there is but one remaining inquiry, was the defendant during any portion of that time not' an inhabitant of or usually resident within the state, or usually in personal attendance upon business within the state? If the crime was committed more .than two years before the case is,presented to the grand jury and nothing appears to take it out of the operation of the statute, 1 do not think an indictment can properly be found. A person cannot properly be indicted for an offense of which the law Carnot take cognizance, and under section 142 the law cannot take notice of an offense committed before the time limited by that section, unless the case is within, some bne of the exceptions specified in section 143. The statute is peremptory. The indictment “must” be found within the time limited, unless the case falls within the exceptions stated. The grand jury may not find an indictment simply because a-crime has been sometime committed, but only when it has been committed within the prescribed time, unless it appears by the evidence before it that although committed before the prescribed time the statute has not run against it. This necessitates proof either that the crime was committed within the time limited, or that some fact exists by reason of which the operation of the statute had been suspended. If it appears to have been committed beyond the limited time it is, in judgment of law, as if no crime has been committed, and the grand jury is bound to so- regard it, unless it also appears that because of some one of the exceptions stated in section 143, it is not barred. To constitute a crime at all of which the law can take' notice it must have been committed within the statutory time, or the exception must exist, and unless there is proof of one or the other ,of these facts the grand jury cannot legally act. In People v. Lord, -12 Hun, 282-287, it is said that “ A statute limiting the time within which indictments must be found is a surrender by the state of its right to- try and punish criminal offenses at its discretion, without limit as to time.” The People v. O’Donnell, 15 N. Y. St. Repr. 141, a demurrer had been interposed to an indictment charging a misdemeanor. The
