26 N.Y.S. 222 | N.Y. Sup. Ct. | 1893
This is an appeal from a judgment of the court of sessions of the county of Franklin allowing a demurrer to the indictment against the defendant. The indictment is in the words following:
“Court of Oyer and Terminer.
“The People of the State of New York vs. Albert Rockhill.
“The grand jury of the county of Franklin by this indictment accuse Albert Rockhill of the crime of assault in the first degree, committed as follows; The said Albert Rockhill, on the 31st day of October, 1892, at the town of Bombay, in said county, did feloniously and with intent to kill assault Frank Mulvaney and Fred Mulvaney with a loaded firearm in the hands of him, the said Albert Rockhill, and did discharge the said loaded firearm toward and at the said Frank and Fred Mulvaney, and did thereby hit and seriously wound the said Frank and Fred Mulvaney."
The defendant stated four grounds of demurrer, as follows: First, that the indictment does not conform substantially to the requirements of the sections 275 and 276; second, that more than one crime is charged in the indictment, within the meaning of sections 278 and 279; third, that the facts .do not constitute a crime; fourth, that the grand jury had no jurisdiction of the alleged offense.
Section 275 of the Code of Criminal Procedure requires that the indictment shall contain: First. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties. This the indictment does. It contains the title of the action, states who the indictment is against, and specifies the name of the court to which it is presented,—“the court of oyer and terminer.” Second. That the indictment shall con
The third count of the demurrer, “that the facts do not constitute a crime,” is answered in what has just been said as to the second count; for if it contains a plain and concise statement of the act constituting the crime, then the facts set forth constitute the crime charged.
The fourth count of the demurrer, “that the grand jury had no jurisdiction of the alleged offense,” cannot be sustained. The indictment purports to have been found by the grand jury of the county of Franklin. It states that the alleged crime was committed at a town in the county of Franklin; that it was committed prior to the time of the finding.of the indictment; and, of course, no question can be raised but what the grand jury has jurisdiction to find indictments for assault in the first degree, committed within the boundaries of the county for which the grand jury is acting.
The second count of the demurrer “that more than one crime is charged,” within the meaning of sections 278 and 279, is more open to question. Section 278 provides “that the indictment shall charge but one crime and in one form,” except as stated in section 279. Section 279 provides “that the crime may be charged in separate counts to have been committed in a different manner, or by different means, and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.” In this case, while but one act is charged to have been done, yet that act is alleged to have been against two persons, and it may be said that, although only one act was done, two crimes were committed;