54 N.Y.S. 129 | N.Y. Sup. Ct. | 1898
The defendants, indicted for conspiracy, have demurred to the indictment. A previous motion to set aside’the indictment was denied by Mr. Justice ¡Van- Wyck. People v. Willis, 23 Misc. Rep. 568. The points then raised were (1) that the grand jury received and acted on illegal evidence; (2) that there was not sufficient evidence before the grand jury; (3) that the action is barred by the Statute of Limitations, and (4) that the defendant Willis was compelled to testify against himself before the grand jury.
The objections to the indictment raised by demurrer are (1) that it does not conform substantially to the requirements of sections 275 and 278 of the. Code of Criminal Procedure, in that it does not contain a plain and concise statement of the act constituting the crime; (2) that more than one crime is charged; and (3) that the facts stated in the indictment do not constitute a crime.
It is apparent, therefore, that none of the questions now before ■the court were disposed of on the motion.
There is but one crime charged in the indictment, viz., a conspiracy to commit a crime, and to commit* acts for the perversion and obstruction ,of the due administration of the laws. Vo conviction could be had under the indictment for any other offense than the one named. It is true .that after charging the formation and existence of the conspiracy the indictment avers five separate and distinct overt acts which it alleges were committed in pursu
In People v. Burns, 53 Hun, 274, an indictment for selling adulterated milk was held defective because it did not state the purchaser. The court said, “ To constitute such sale there must have been a pm-'chaser, and the defendant was entitled to be informed by the indictment who such purchaser was, so that he could be prepared to disprove such sale upon the trial, if it had not been made as alleged. The omission of. such statement in the indictment constituted a material defect, as, without it the .defendant would be liable to surprise upon the trial, and quite likely to be prejudiced by such omission. The defect, therefore,, must be regarded as matter of substance, and not merely of form, as it was the right of the defendant to be informed not merely of the crime charged, but also of the act which constituted it.”
In People v. Gregg, 59 Hun, 107, the defendant was indicted under á statute prohibiting a police official from being interested in the manufacture or sale of spirituous liquors. The indictment charged the defendants with willfully, fraudulently and intentionally engaging in the 'manufacture and sale of spirituous liquors at the city of Hudson during a specified time while the defendant' held the office of mayor, acting as head of the police under the city charter, but the precise time, and the place and [manner of the alleged manufacture and sales were not set forth. The court said (page 110): “ There is no concise statement in the indictment of the act constituting the crime, as required by subdivision 2 of section 275 of the Code of Criminal Procedure; nor does the indictment anywhere set. forth the act charged as an offense as clearly required b.y the form prescribed by the legislature in section 276 of the Code. These requirements are clearly embraced in the Criminal Code and must be considered in determining the sufficiency of an indictment. The object of a statement of the act charged as criminal in an indictment is to inform the accused of the exact nature of the charge made against him. That is the primary object of all pleading in criminal as well .as civil proceedings. It is not enough to allege that 'the accused committed murder, without alleging the name of the victim, or to chaige burglary or forgery without stating what was burglarized, or in what the forgery consisted; nor is it sufficient to allege in general terms, under section 1 of chapter 163 of the Laws of 1890, that the
In People v. Gleason, 75 Hun, 572, an indictment charging a person with the crime of auditing a false claim against a municipal corporation was held defective because it failed to state that it was the duty of the defendant to audit bills.
In People v. Dumar, 106 N. Y. 502, the defendant was charged with grand larceny in unlawfully and feloniously stealing, taking and carrying away certain described property. On the trial it appeared that the defendant obtained possession of the property from the owner, upon a sale on credit, induced by false and fraudulent representations, and although that act under the Code constitutes grand larceny, the conviction was reversed by the Court of Appeals because the indictment did not charge the specific act which was proven on the trial. The court held (page 512) that the general principle of pleading before and since its enactment has not been changed by the Ctiminal Code. “ Hnder either system,” said the court, “ an offense consists of certain acts done or omitted under certain circumstances, and under neither is any indictment sufficient which does not accurately and clearly allege all the ingredients of' which -the offense is composed, so as to bring the accused within the true meaning and intent of the statute defining the offense.”
In People v. Stark, 136 N. Y. 538, the indictment charged in substance that the defendant maliciously published, at a designated time and place, of and concerning one Asa T. Soule, a false and scandalous libel, which wús set forth verbatim, but the indictment contained no averment as to the manner of publication, the person to whom it was addressed, or by whom it was seen or read. The accusation, if good, could have been proven by proof of publication in any newspaper or community. The court affirmed a reversal of the defendant’s conviction, stating (page 542) that an ££ indictment which exposes the defendant to attack from so many unexpected quarters fails to adequately fulfill the office which it was intended to perform as a pleading in a complete system of criminal procedure.”
To the like effect was the decision in People v. Albow, 140 N. Y. 130, and in the opinion of the court, (Thief Judge Andrews stated (page 134) that the rule ££ that the offense must be charged in plain and intelligible language, and that the indictment must set forth
In United States v. Kessel, 62 Fed. Repr. 57, a federal officer was indicted for asking “ a gratuity, the nature of which is unknown to the grand jurors,” with intent to have his official action influenced thereby. The statute was aimed at' the unlawful use of money or something of value, and the court held that although the word “ gratuity ” was sufficient to satisfy the terms of the statute, a demurrer to the indictment should be sustained because it does not charge the nature of the gratuity, and the defendant is, therefore, not informed of what he is to meet in evidence.
La Hartmann v. Commonwealth, supra, the indictment was for conspiracy to cheat and defraud by removing and secreting goods of the defendants so that they could not be reached by' creditors. The time, place and circumstances were not set forth, nor were the goods described specifically either by the place where they were kept or by the person who had them in custody. Chief Justice Gibson held these omissions fatal, stating (page 66) that “Precision in the description of the offense is of the last importance to the innocent, for it is that which marks the limits of the accusation and fixes the proof of it.”
In the leading case in this state of Lambert v. People, 9 Cow. 578, an indictment for' conspiracy to cheat and defraud was held defective because it did not particularly set forth the means intended to be used-by the conspirators, and show that those means were criminal. The authority of this case upon this point has never been questioned so far as I can find.
In United States v. Cruikshank, 92 U. S. 542, the defendants were indicted for conspiracy to hinder and delay citizens of the United States of African descent, named specifically in the indictment,- in the exercise "of their rights, privileges and immunities granted by statute. The indictment was held too vague and uncertain in that it did not state the deprivation , of any particular right as the object of the conspirators. Chief Justice Waite, delivering the opinion of the Supreme Court of the United States, said (page 558): “A crime is made up of acts and intent, and these must be set forth in the indictment, with reasonable particularity of time, place and circumstances. It is a crime to steal goods and chattels, but an indictment would be bad that did not specify .with some degree of certainty, the articles .stolen. This,
In United States v. Walsh, 5 Dillon (U. S.), 58, a federal superintendent of construction and his assistant were indicted for conspiracy to defraud the United States by certifying that certain false and fraudulent accounts and vouchers for labor and materials performed,and furnished for use in the construction of a customhouse and post-office were true and correct. A demurrer to the indictment was sustained on the ground that the charge was too general and indefinite, and that the specific accounts and vouchers should be set forth, not only that the accused might have an opportunity to prepare their defense, but that the court might see that the accounts and vouchers were such “ that an intent to defraud the United States can be predicated of them.”
In United States v. Simmons, 96 U. S. 360, a count in an indictment was held defective for not stating the name of the person procured by the defendant to use a certain still in violation of a federal statute, and also for not averring with sufficient precision the use to which the building containing the still was devoted. Mr. Justice Harlan said (page 362s1: “ Where the offense is purely statutory, having no relation to the common law, it is, ‘ as
In United States v. Hess, 124 U. S. 483, the defendant was in;dicted for violating a statute prohibiting correspondence through the post-office establishment of the .United States or the inciting of" any person to open communications through such post-office in aid of any scheme to defraud. The indictment charged the. defendant with having devised on a certain day and at a specified place- a scheme to defraud divers persons to the jurors unknown, which he intended to effect by inciting such other persons to open communications with him by means of the post-office establishment of the United States, and with having unlawfully received from the post-office at Hew York, a certain letter in attempting to execute said "scheme, which letter and its address were set forth, verbatim. .The court held that while a statutory offense may be described in the general language of the law, the description must nevertheless be accompanied by a statement of all the particulars essential to constitute the offense or crime, and to acquaint- the accused of what he must meet on the trial. The indictment was declared defective because it did. not state the particulars of the alleged scheme to defraud. Mr. Justice Field (page 486) declared the rule to be that “ Ho essential element of the crime can be ■ omitted without destroying' the whole pleading. . The omission cannot be supplied by infenchnent or implication, and the charge must be made directly and not inferéntially, or by .way of recital.” See, also, People v. Pillion, 29 N. Y. Supp. 267; United States v. Carll, 105 U. S. 611; People v. Haight, 54 Hun, 8; People v. Danihy, 63 id. 579; People v. Laurence, 66 id. 574; People v. Winner, 80. id. 130; People v. Stone, 85 id. 130; People v. Hubbard, 10 Misc. Rep. 104; People v. Lowndes, 130 N. Y. 455; People v. Rosenberg, 138 id. 410.
The attitude of the indicted official, Willis, towards those who might contract with the city, the nature of his powers and responsibilities in the premises, the character of the duties he was called upon to perform, the fact that he was invested by law with the power of awarding contracts for labor and materials, the scope and extent of the violations of duty embraced in the scheme of the conspiracy, the facts and circumstances showing-that the contemplated acts and omissions amount in law to a violation of official duty, and the relation of such violations of duty to the award of . contracts, necessarily involving the effectiveness of demands for money from prospective contractors t-o be rewarded by the results of the official malfeasance, are all essential ingredients of the crime, and integral parts of the act constituting it; and by the settled rules of criminal pleading should all be specifically alleged, in .order that the defendants should be apprised of the contemplated wrongdoing which the people intend to prove against- them, and the court enabled to see that the official acts and omissions embraced in the purpose of the conspiracy were in fact unlawful, and -such as could tend to be effective in supporting the demand and receipt of money from persons -entering upon contractual relations with the city of Brooklyn. Under such intelligible and enlightened rules it is manifestly insufficient to say, that the conspiracy was formed for such vague, general and indefinite purposes that its existence and criminality could be proven upon the trial by showing a demand for money from unnamed individuals desiring to contract with the city in return for undisclosed violations of duty on the part of unnamed subordinates of the accused, in any particular which to persons unknown might Appear to be effective. The imperfection is not one of form merely, but one which tends to the prejudice of the substantial rights of the defendants,, upon the merits.
I do not lose sight of the fact that the averment of overt acts does state and set forth - certain official duties and obligations imposed upon the defendant Willis', as commissioner of city wprks. These allegations, however, do not cure the defect. Hone of them relates to the time of the formation of the conspiracy, viz., the month of February, 1896, but all charge him with official obligations
The conclusion is imperative that the indictment wholly fails to fulfill its office. It. neither - charges a crime with the particularity which the Criminal Code demands, nor contains a plain and concise statement of the act constituting the crime intended to be charged.
In reference to the future disposition of the case it is to be noted, that assuming, as I must, that the grand jury had evidence ■warranting the allegations of - overt acts contained in this indictment, the defendants are amenable to indictments and prosecution for actually' consummated misdemeanors and possibly felonies. Under such indictments • the ..conspiracy can be proven with the ■ same effect as if it constituted the gist of the charge. People v. McKane, 143 N.Y. 455. The object to be served in selecting the original conspiracy for prosecution rather than the executed offenses which resulted from it is not apparent. In order, however, that this decision may not in any respect interfere with the official policy of the district attorney, and- it being apparent that the objection on which the demurrer is allowed may be avoided in a new indictment, I direct the case to be submitted to another grand jury.
Ordered accordingly.