78 P. 354 | Cal. | 1904
This is an appeal by the people from a judgment in favor of defendant, sustaining and allowing his demurrer to an indictment found and presented against him by the grand jury of the city and county of San Francisco, the grounds of demurrer specified, in addition to want of facts to constitute a public offense, being that the indictment did not substantially conform to the requirements of sections
The superior court, apparently being of the opinion that the objection on which the demurrer was allowed might be avoided in a new indictment, directed that the case be submitted again "to the grand jury now in session," but the attorney *105 for the people preferred to stand upon the indictment already presented, and took this appeal.
The indictment was based upon the provisions of section
"Co. Clerk F. No. 170.
"Legal Department. County Clerk's Assistants.
"Auditor's No. Treasurer's No. $100.00
"SAN FRANCISCO, Oct. 31, 1903.
"A. Davidson presents this demand on the treasury for the sum of one hundred dollars, being for his salary as copyist for the month of Oct., 1903.
"As authorized by article III, chapter IV, article V, chapter V, section 2, of the charter of the city and county of San Francisco, approved January 19, 1899, in relation to certain deputies, assistants and copyists of county clerk.
"A. DAVIDSON, Signature.
"Allowed, payable out of the general fund.
"___________________ 190___
"___________________________ "Auditor City and County.
"By ____________________ "Deputy.
"Correct ALBERT B. MAHONY, "County Clerk.
"By ____________________ "Deputy.
"Received Payment, _________________
"Auditor's receipt No. ____
"Legal Department County Clerk's Assistants. General Fund. "When paid, Delivery stamp.
"This demand can only be paid out of the income and revenue provided, collected, and paid into the general fund of the treasury for the fiscal year 190__
"Registry stamp." *106
It is further alleged "that said Albert B. Mahony then and there well knew that said false and fraudulent claim . . . was then and there false and fraudulent"
There was no allegation of any fact tending to show wherein the claim set forth was in any way "false" or "fraudulent," the allegations in this respect, in addition to setting forth a copy of a claim in favor of one Davidson, which was valid upon its face and certified as correct by the defendant as county clerk, being in the general language of the statute describing the offense. The falsity or fraudulent character of this claim, if it was in fact false or fraudulent, arose from some fact or facts not alleged, and concerning which the indictment furnished absolutely no information. An examination of the copy of the claim set forth shows that this apparently valid claim may have been "false" in any one of many ways, and "fraudulent" for any one of a great variety of reasons. Nothing, however, but the conclusion that it was both false and fraudulent is alleged, and the defendant, who must be presumed to be innocent of any crime, was left entirely in the dark as to any facts upon which the allegations of falsity and fraud were based.
It is urged in support of the indictment that it is generally sufficient to describe the offense substantially in the language of the statute. This is undoubtedly the general rule, but, as has been said, such rule simply means "that when the statute defines or describes the acts which shall constitute a particular offense, it is sufficient in an indictment to describe those acts in the language employed in the statute, applying them, of course, concretely to the person charged." (People v. Ward,
The qualification to the general rule is peculiarly applicable in cases where fraud is an element of the offense, and the statutory definition of the crime simply includes the general term "fraud" or "fraudulently," without any description of the acts which shall constitute the fraud. This is necessarily so, in view of the fact that fraud is but an inference of law from certain facts. This was clearly set forth by this court in Bank in the case of People v. McKenna,
In People v. Neil,
These decisions of this court are in line with the decisions generally on the question of the necessity of alleging the facts upon which a charge of fraud is based, and are apparently conceded by learned counsel for the people to be correct. It is sought, however, to distinguish them from the case at bar, but we can see no distinction material to the question under discussion. It was essential to the commission of the offense sought to be charged by the indictment before us that the claim presented by defendant for allowance was in fact false or fraudulent. It was alleged that it was both false and fraudulent. The allegation that it was fraudulent was the allegation of a mere conclusion of law, assumedly based upon certain facts not disclosed by the indictment. What the extraneous facts, claimed by the district attorney to render it fraudulent, and alleged by the indictment to have been known to defendant, were, the indictment fails to show, and the defendant was left in absolute ignorance as to the particular charge he would be compelled to meet in this connection. It may be that the claim itself is set forth with sufficient certainty to enable the defendant to plead a judgment on the merits in bar of any subsequent prosecution, but this is only one object of the rule requiring the acts claimed to constitute the offense to be sufficiently set forth, the other equally important object being to apprise the accused with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense. The rule stated by Mr. Justice Temple in Capuro v. Builders' Ins. Co.,
We are satisfied that where it is sought to charge one with the presentation of a fraudulent claim under section
It is unnecessary to determine whether the allegation that the claim was "false" as well as fraudulent adds anything to the indictment. The particular objection that we are considering is not that the indictment does not state facts constituting a public offense, but that it does not conform to the requirements of sections
Being advised by the indictment that the people charge that the claim was fraudulent as well as false, even if there be any distinction between these terms as used in connection with a claim such as is set forth in such indictment, he is certainly entitled upon objection made by demurrer to know with reasonable certainty the facts relied upon by the people as constituting the alleged fraud.
We do not wish to be understood as holding that it would be sufficient in alleging an offense under section
The attorney-general, in support of this indictment, relies *110
almost entirely upon the decision of this court in Department, inPeople v. Carolan,
The judge of the superior court did not err in sustaining the demurrer to the indictment.
The judgment is affirmed.
Shaw, J., and Van Dyke, J., concurred.