People v. Taylor , 4 Park. Cr. 158 ( 1859 )

Mullin, J.

The defendant is indicted by the grand jury, under the 40th section of the amended charter of the city of New York, passed April 14, 1857.

That section is as follows: “ Any officer ofthe city government, or person employed in its service, who shall willfully violate or evade any of the provisions of this charter, or commit any fraud upon the city, or convert any of the public pro" perty to his own use, or knowingly permit any other person to so convert it, shall be deemed guilty of a misdemeanor,” &c., &c. The particular clause of the section which the defendant is charged with violating, is that which declares it a misdemeanor to “ commit any fraud on the city." The fraud alleged is the non-payment by the defendant, to the chamberlain of the city, of the taxes collected by him on warrants issued by the city authorities to the defendant as collector of assessments in said city, within the time required by the ordinances of the common council.

There are numerous objections made to the indictment by the defendant’s counsel, several of which I think are well taken.

I propose to examine but a single one, which is, that the indictment does not allege or show that any fraud upon the city has been committed. This objection goes to the merits, and, if well taken, no amendment can cure it, and thus the delay and trouble incident to an attempt to remodel the present bill, to obviate mere formal objections, will be avoided.

The Legislature has not given any definition of the term 11 fraud," used in this statute, and we are left, therefore, to ascertain its meaning by the well established definition of the term by the courts and by approved writers on the law, at the time of the passage of the act in question.

By a distinguished writer on the civil law, fraud was defined to be “ any conniving, deception or artifice, used to circumvent, cheat, or deceive another.” This definition is approved by Judge Story in his Equity Jurisprudence (vol 1", §§ 186, 187), as being sufficiently descriptive of positive actual fraud, when there is an intention to commit a cheat or deceit upon another, to his injury. But he says it does not embrace that large class of frauds recognized in equity as implied or constructive frauds Mr. Jeremy, in his Equity Jurisprudence (B. 3, p. 2, 358)" defines fraud to be “ a device, by means of which one party has taken an unconscientious advantage of the other.”

Judge Willard, in his Equity Jurisprudence (p. 147), says “ Fraud has been defined to be any kind of artifice by which another is deceived.” Hence, he says, “ All surprise, trick, cunning, dissembling, and other unfair way that is used to cheat any one, is to be considered as fraud.”

. Can it be said that the acts or omissions of the defendant charged in this indictment, constitute fraud within either of the definitions of that term above given ? It is impossible to separate deceit or artifice from fraud; it is of the very essence of the fraud. That ingredient is totally wanting in this case. It was doubtless competent for the Legislature to declare that the omission by a public officer to pay over money collected by him in his official capacity, was a fraud upon the person or corporation entitled to receive it. But until fraud is thus defined, no indictment for such an offence as a fraud can be maintained.

I have been referred to the definition of fraud as laid down in Bacon’s Abridgement, title Fraud. It is there defined thus: “ Fraud is the act by which one person, unlawfully, designedly and knowingly, appropriates to Ms own use the property of another without a criminal intent.” If this is the true meaning of the word, it embraces the acts or omissions charged on the defendant in this indictment. With all deference, I think this definition omits all the essential ingredients of fraud, and embraces a multitude of acts wMch have never been supposed to be fraudulent.

Within the definition thus laid down, comes every forcible and known unlawful seizure and conversion of property, embracing all cases of trespass, case, trover and replevin, in which the guilty party was acting illegally and with knowledge that the property taken was that of another. If A goes at midday into his neighbor’s field, and forcibly seizes and carries off such neighbor’s horse, knowing that the latter was the lawful owner, A may, under the defimtion, be indicted for the fraud wherever fraud is indictable. The litigation of the country would be transferred from the civil to the criminal courts wherever this definition of fraud was adopted. I will not say that in no case will acts such as are embraced in this definition, constitute fraud; but I do say that such acts, standing alone, do not come within the meaning of the term fraud, as understood by the courts of this country or of England.

As every violation or evasion of the charter is declared to be a misdemeanor, if the duty of paying over is imposed upon the defendant by the charter, there is no necessity for resorting to any forced construction of terms to make the accused responsible. If the duty is not imposed by the charter, then the omission to perform it is not a criminal offence, and the city must resort to the same civil remedy that every individual in the State is compelled to adopt when his servant or agent embezzles Ms property, or neglects or refuses to pay over moneys which he may have received for Ms principal.

For these reasons I am constrained to grant the motion to quash this indictment. If I entertamed any doubt as to its sufficiency, I would leave the defendant to his motion in arrest of judgment; but I cannot discover any principle upon which the indictment can be sustained, without a total abandonment of those rules of criminal pleading, the observance of which is essential to the protection of the citizen, whether guilty or innocent of the crime of which he stands accused.

It is said that any pleading is sufficient that informs the accused of the offence with which he is charged. This is unquestionably the very end and object of all pleading, and if this general rule is rightly understood and applied it is unobjectionable. The use which is sought to be made of the rule at this day, in criminal as well as civil cases, is to justify the abandonment of all form and all certainty in pleading, and, instead of inquiring whether an offence or cause of action is contained in the indictment in the one case, or complaint in the other, the inquiry demanded by the rule, as now understood, is, “ does it inform the party of the charge or claim made against him.” The rule, as it should be applied, requires that the offence or cause of action be described with such precision and accuracy as to distinguish it from all other offences and causes of action, and that by such description the other party may know with what he is charged. The test, then, is not how loose and imperfect a pleading may be, but how clearly and distinctly the case intended to be made by it is stated. The common law required great accuracy in both civil and criminal pleading, not with a view of oppressing the parties, but of protecting them from the evils resulting from loose'and inartificial pleadings ; to require the pleader to so describe the offence in the indictment that the accused might be shielded from a second prosecution for the same offence. This wholesome and necessary rule must be enforced, or all system and symmetry in pleading will be lost, and the accused will be no longer safe from repeated annoyances on the same accusation.

The motion to quash the indictment is granted.