People v. Trank

85 N.Y.S. 55 | N.Y. App. Div. | 1903

Parker, P. J.:

At the time this indictment was found by the grand jury it was a crime to desert a child by those who had the care or custody of it, only in the event that the child was under the age of six years. (See Penal Code, § 287, as amd. by Laws of 1892, chap. 325.) By chapter 376 of the Laws of 1903 that section was amended so as to make it a crime if the child deserted was under fourteen years of age; but prior to September 1, 1903, when that amendment took effect, it was no crime to desert a child under fourteen unless it was also under six years of age.

Therefore the indictment which the grand jury presented charged no crime against the defendants. If the People had proven the desertion of a child ten years of age, they would have established every fact stated in the indictment and yet they would not have proven that the defendants had committed any crime. “ The settled rule of criminal pleadings requires that all the elements which enter into the definition of an offense must be stated in the indictment.” (People v. Albow, 140 N. Y. 134; People v. Kane, 161 id. 386.)

So the question is presented whether, when the facts stated in the indictment do not constitute any crime, the trial court may amend it by inserting therein further and other facts which, if proven, would show that the defendants have committed a crime. I.am of' the opinion that such an amendment cannot be allowed. The. indictment must be found by a grand jury, and if the one which it presents does not state any act of the-defendant which constitutes a. crime, then no conviction can be-had thereon. ■ In other words, the trial court has no authority to find an indictment against the accused. That seems to have been the proceeding in this case. The trial court adopted the statement of the district attorney that, the child was under six years of age, and so the indictment was made to conform to that fact. It was the trial judge, and not the grand jury, th A found that fact, and we have no reason whatever to presume that the grand jury ever passed upon that question. These defendants were in fact tried, not upon an indictment found, but. upon an information presented by the trial judge and the district attorney. That method of proceeding is not tolerated in this State, and so the judgment rendered thereon must be reversed.

The argument urged by the respondent on this appeal, that the amendment was to an immaterial matter, and was within the provisions-of section 293 of the Code of Criminal Procedure, is clearly not correct. Nor can the amendment be sustained under any of the provisions of section 284 of that Code.

As shown above, the indictment fails entirely to charge cmy crime, and the one upon which the defendants were tried was never presented by a grand jury.

The judgment and sentence thereon should be reversed, and inasmuch as no conviction can lawfully be had upon the indictment as presented by the grand jury, no new trial should be ordered thereon, The defendants should be discharged from custody, and the order entered herein should so direct.

All concurred.

Judgment reversed and defendants discharged.