5 N.Y.S. 22 | New York Court of General Session of the Peace | 1889
On March 25, 1885, the Grand Jury of this county filed an indictment in this court against the above named defendants, charging them with violating the election laws of this State.
The law charged in the indictment to have been violated by the defendants is a portion of section 1904, chapter 410, of the Laws of 1882, which reads as follows, viz.:
“ If at any election hereafter held in the city and county of New York any person shall, by bribery, or reward, or offer, or promise thereof, or otherwise unlawfully, either directly or indirectly, influence or attempt to influence any elector in giving his vote shall, upon conviction thereof, be adjudged guilty of a felony.”
This section 1904 is made up of many other prohibitory clauses besides the one quoted, but the indictment is wholly predicated upon the one referred to.
On the arraignment of the defendants to plead to the indictment they interposed a demurrer, in and by which they claim:
First, that the indictment does not state facts sufficient to constitute a crime, and second, that the indictment is bad
After a careful examination of the indictment and the law, I have come to the conclusion that both grounds of demurrer are untenable for the following reasons :
So far as the first ground of demurrer is concerned, it appears upon inspection of the indictment that it not only follows the statutory words creating and defining the offense, but it also contains sufficient averments of time, place, manner, and occasion of the committing the alleged crime as will not only enable the defendants to ascertain what they are to defend themselves against, but sufficiently identifies the alleged crime so as to enable the defendants to plead the same in bar to a second prosecution, and ordinarily this is sufficient to constitute a good indictment. The ordinary rule is that a charge in an indictment predicated upon a statute may be made in the very words of the statute, when by using those words the act in which an offense consists is fully, directly, and expressly alleged, without any uncertainty or ambiguity. Upon an inspection of this indictment, and comparing it with the statute upon which it is framed, it will be seen that the pleader has not only followed this ordinary rule but has also expanded the words of the statute so as to give the manner and occasion of the committing the alleged crime; therefore, the indictment, in my judgment, contains sufficient allegation of facts to constitute a crime.
As to the second ground of demurrer, namely, that the indictment is bad for duplicity in charging two separate and distinct crimes in a single count, it is perfectly evident upon an inspection of the indictment that the pleader intended to charge but one crime, to wit: that of bribery of an elector to influence him in giving his vote at a general election held in this county.
The first and only count in the indictment, among other things, charges that the defendants feloniously and unlawfully offered and gave a bribe, and inasmuch as the statute
In this contention, in my judgment, the defendants are in error, for the law is well settled in this State, as well as in some, at least, of the other States, that where an offense may be committed by doing any one of several things the indictment may in a single count group them all together, and charge the defendant to have committed them all, and a conviction may be had on proof of the committing of any one. See Bork v. People, 91 N. Y. 13; 1 N. Y. Crim. Rep. 379 ; People v. Davis, 56 N. Y. 95.
Bishop in his work upon Statutory Crimes, at section 383, lays down the following rule to be observed in drawing an indictment upon a statute:
‘‘ If an indictment is to be drawn on a statute, in alternative clauses, the pleader, as a general rule, may elect to charge no more than constitutes an offense within one clause, or he may proceed upon two clauses, or three, or all, as he deems best, and all in a single count, employing the conjunctive c and’ where the statute uses the disjunctive {or.’ But though the conviction may be for the whole, it is all, when proceeded against in this way, regarded as only one offense, subjecting the offender to no more than one penalty.”
Under a Massachusetts statute, where the words were “ whoever sells or offers for sale adulterated milk is guilty,” etc., an indictment was sustained which alleged that the defendant not only unlawfully offered for sale, but also sold, adulterated milk, in one and the same count. See Commonwealth v. Smith, 103 Mass. 444. It follows in this case, in the light of the foregoing decision, that the pleader, intending to charge only a single crime against the defendant, has the legal right to charge the same as he has done in this indictment.
Note. Such an indictment has always been sustained.
Among many authorities before the Criminal Codes, see Phelps v. People, 72 N. Y. 324, and Pickett v. People, 8 Hun, 83.
Since the Codes, see People v. Kelly, 3 N. Y. Crim. Rep. 272, and People v. West, 6 Id. 382.
In a recent Indiana case, State v. Stout, 13 N. E. Rep. 715, the court passed on a question of duplicity similar to the one raised in the case at bar. It was there held that an information under section 2003 of the Criminal Code of Indiana, which charges that the accused did unlawfully frequent, and live in, a house of ill-fame, kept by J. S., did unlawfully associate with women of bad character for chastity in public places, and did commit fornication for hire, charges but one offense, that of being a prostitute, and is not bad for duplicity. The court said : “ We think the case falls within the rule thus stated in Fahnestock v. State, 102 Ind. 156. ‘ Where a statute like section 2003, above cited, makes it an offense to do this, or that, or another thing, mentioning several things disjunctively, either one of which would constitute one and the same offense, subject to one and the same punishment, it is the general rule that all the things mentioned in the statute may be charged in a single count as constituting but a single offense.’ Davis v. State, 100 Ind. 154, and authorities cited.” S. P., Comer v. State (Tex.), 10 S. W. Rep. 106.
That an indictment charging a statutory offense substantially in the language of the statute is sufficient, was again reiterated in Benham v. State (Ind.), 18 N. E. Rep. 454.