People v. . Corbalis , 178 N.Y. 516 ( 1904 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The demurrer to the indictment contains the following, among other grounds: "The indictment does not conform to the requirements of sections 275 and 276 of the Code of Criminal Procedure in that it does not contain a plain and concise statement of the acts constituting the crime." This court considers those sections of the Code in People v. Dumar (106 N.Y. 502), and reaches the conclusion that an indictment must charge both the crime and the act constituting it, and that the omission of either is fatal. In the course of the opinion, written by Judge DANFORTH, it is said: "If there was no accusation of crime, the paper, however formal in other respects, would not be an indictment, and so there would be no criminal action. If it contained no statement of the act constituting the crime there would be no description of the offense, and neither an acquittal nor a conviction would enable the defendant to withstand a further prosecution for the same crime. Moreover, the plain words of the statute, as well as its object, would be disregarded; for the manifest intention of the legislature in requiring the indictment to state the act constituting the crime was, among other things, that the accused should learn from it what he was called upon to defend. The form of the indictment given in the Code (§ 276) leads to the same conclusion."

The view thus expressed has been cited with approval many times in this court, and recently in the following cases, among others:People v. Peckens (153 N.Y. 576, 586); People v. Willis (158 N.Y. 392, 396); People v. Klipfel (160 N.Y. 371, 374);People v. Kane (161 N.Y. 380, 386).

The latter case quotes with approval the language employed by Judge ANDREWS in People v. Albow (140 N.Y. 130, 134): "The rule that the offense must be charged in plain and intelligible language, and that the indictment must set forth all the essential elements of the crime, is and ought to be preserved alike for the protection of the accused and in the interest of the certain and orderly administration of the criminal law."

In People v. Helmer (154 N.Y. 596, 600), Judge MARTIN writing, it is said: "The purpose of an indictment is to identify the charge against a defendant, so that his conviction or acquittal may inure to his subsequent protection, and to apprise him of the nature and character of the offense charged and of the facts which may be proved, so as to enable him to prepare his defense."

Judge O'BRIEN expresses it in briefer form in People v.Willis (158 N.Y. 392, 396; cited supra): "An indictment is now good if it contains sufficient averments to inform the defendant of the nature of the accusation against him and enables him to prepare his defense."

These decisions establish that the object of the legislature — in requiring that in addition to charging the crime the indictment must contain a plain and concise statement of the act constituting the crime — is twofold: First, to enable a defendant to prepare his defense; second, to prevent a second indictment for the same offense.

The draftsman of the indictment before us evidently appreciated the force and effect of these decisions, for the indictment in the first place charges the crime, and then it makes a further statement apparently intended to comply with that provision of the statute requiring that the indictment shall state the act constituting the crime. But not an act is stated in this part of the indictment which is not to be found in that portion of it which charges the crime. Indeed, it conveys no additional information to defendants whatever. It does not apprise them of any act on which the People intend to rely not found in that portion of the indictment which simply undertakes to charge the crime committed. The crime charged is as follows: Contrary to law "engaging, assisting, aiding and abetting in pool selling, and selling pools upon the result of a trial of and contests of, speed and power of endurance of beasts." And when we come to that portion of the indictment which purports to state the facts constituting the crime charged, we find it as follows: Contrary to law did "engage, aid, assist and abet in pool selling and selling pools, upon the result of a trial and contest of speed and power of endurance of beasts." The only distinction between the two statements is a change in the form of the verb. This difference does not advise defendants how to prepare their defense. It does not apprise them of the act the People intend to prove. Therefore, in the event of their conviction or acquittal it offers no means of protection against subsequent indictments, for from it they cannot learn what act or acts of theirs the People intend to prove in order to make out the crime charged.

The statute under which defendants were indicted may be violated in a number of ways: By directly taking or placing a wager; by inducing others to go to a fixed place to wager; by renting a building to be used for the purpose of poolselling, knowing that it is to be so used; by keeping and maintaining a building for that purpose, rented from others; by contributing the capital with knowledge that another is to use it in starting the business of poolselling; by uniting in the formation of a corporation to be engaged in selling pools; by keeping watch to prevent those engaged in selling pools from being caught; by giving money to another to be placed; by assisting as a clerk others engaged in selling pools, or as an operator in receiving accounts of races; by keeping apparatus or paraphernalia suitable for that purpose; by acting as a solicitor for patrons for poolselling.

In these and many other ways, some of which are suggested by the learned counsel for appellants, defendants might have committed acts constituting a violation of this statute. But not one of them is set up in the indictment, and for aught these defendants or their counsel know the People might intend to attempt to prove any one of the acts suggested, or others that might be suggested, as the act constituting the crime charged in the indictment.

The section prescribing what an indictment shall contain, as construed by this court, is not satisfied by an indictment which omits a statement of the acts which the People claim constituted the crime, when it may be made out by the proof of any one of the many different acts which constitute a violation of the statute under which this indictment is found.

The case of People v. Stedeker (175 N.Y. 57), while not in point, supports, by its opinion, as I read it, the conclusion we have reached.

The learned judge who wrote the opinion of the Appellate Division appreciated the force of the argument of defendants that it is impossible under such an indictment for the accused to properly prepare for trial, but he suggested that defendants could be relieved from this embarrassment by making a motion for a bill of particulars. The difficulty with that remedy is that whether a bill of particulars shall be granted or not rests in the discretion of the court. A motion may be made, it is true; but it need not be granted. Hence it is the duty of the courts to see to it that the right which the legislature has accorded to a citizen accused of crime to have the indictment state the acts constituting the crime so that he may prepare his defense, and be protected against further prosecution, be not frittered away by holding that the requirement of the statute will not be insisted upon, and that upon defendant will be placed the burden of ascertaining, if he can, by a motion for a bill of particulars, addressed to the discretion of the court, what particular act or acts the People claim make out the crime charged.

The order of the Appellate Division should be reversed, and the order of the County Court affirmed.