15 N.Y.S. 917 | N.Y. Sup. Ct. | 1891
Upon the face of the record the plea was properly overruled. The verdict rendered upon the trial under the first indictment was not on the merits It was directed by the learned recorder because of his opinion that there was a variance between the proof and the indictment. The verdict, as recorded, reads as follows: “The jury, without leaving the bar, say they find the defendants not guilty, on the ground of variance between the proof and the indictment.” Upon the face of the record, therefore, the case is brought within section 340 of the Code of Criminal Procedure, which provides that, “if the defendant were formerly acquitted on the ground of a variance between the indictment and the proof, * * * it is not deemed an acquittal of the same offense.” This section was a substantial re-enactment of the law as it existed under the Revised Statutes. 2 Rev. St. p. 701, § 24. If the case stood upon the record alone, there would, therefore, be no difficulty with regard to the result. We would only have to follow the plain terms of the statute, as was done in Canter v. People, 1 Abb. Dec. 305. There the plea presented the ground of acquittal on the former trial in the very words of the Revised Statutes, namely, “on the ground of a variance between lhe indictment and the proof.” Upon this the court said: “We are therefore admonished by this clear and explicit declaration of the statute that an acquittal upon such ground forms no bar to a trial and conviction upon a subsequent indictment for the same offense. This plain provision of the statute law of the state disposes of the plea in bar interposed by the prisoner, and shows it was properly overruled.” The distinction between that case and the present lies in the fact that the defendants here dispute the ground of acquittal as expressed in the record, and insist that there was no material variance between the indictment and the proof. Their contention is that the learned recorder erred in tins regard, and that, consequently, they should now have the advantage of a general verdict of acquittal upon the merits. Whether the variance referred to was or was not material, we think the defendants cannot now be permitted to question the position which they took upon that head on the former trial. The record of that trial distinctly shows that the defendants there claimed that the variance was material; that because of its substantial character certain evidence offered by the people, tending to show that a license had been duly issued to one Ahrens, was inadmissible; and that an amend
The other question raised upon this appeal, namely, whether the indictment states facts sufficient to constitute a crime, does not appear to have been presented upon the motion in arrest of judgment. The sole question, then, before the court, so far as appears from the record, was whether the defendants' had been twice put in jeopardy. We think, however, that the facts alleged in the indictment sufficiently state a crime within section 117 of the Penal Code, and that no special discussion on that head is required. We concur with Judge Martine in the opinion which he delivered upon overruling the demurrer interposed by the defendants to the first indictment. See, also, People v. Meakim, (Sup.) 10 N. Y. Supp. 161, affirmed 123 N. Y. 660, 26 N. E. Rep. 749; People v. Jones, 54 Barb. 311; People v. Brooks, 1 Denio, 457. The order appealed from should therefore be reversed.