People v. Bogdanoff , 254 N.Y. 16 ( 1930 )

What is an indictment? The Constitution of the State of New York (Art. I, § 6) reads: "No person shall be held to answer for a capital or otherwise infamous crime * * * unless on presentment or indictment of a grand jury." This entire section was in the Constitution of 1821, and has remained unchanged by the various Constitutional Conventions which have met since that time. The Constitution of the United States, by the Fifth Amendment, reads: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury." What does this word "indictment" mean? In framing constitutions, the foundation of all government, binding upon courts as well as Congresses and Legislatures, words are chosen with a carefulness and an exactness seldom found in the drafting of other instruments. Meanings are not left in a fog, to be defined by subsequent generations. The framers of our Constitutions knew what they were doing; they were well acquainted with the evils under which humanity had suffered, and they organized our government with these evils pressing on their minds and hearts. No man shall be held to answer for a capital or otherwise infamous crime, except on an indictment of a grand jury. Did our forefathers know what an indictment was? When using this word in the Constitution, they meant the form of accusation with which they were acquainted, the one in common use at the time, and which was then known to the law as an indictment. This legal accusation consisted of two essentials, from which there has never been a departure for the past century. First, the accused is charged with having committed a crime, known to the law; and second, the act which he did constituting that crime is stated. These are the essentials of an indictment, and withoutboth these elements there is no indictment which the Constitution of the United States or this State recognizes. The Code of Criminal Procedure of the State of New York, in defining an indictment, has merely stated the meaning of the word as used in the Constitutions and exemplified by all authorities. The provisions of sections 274 and 275 provide that the first pleading on the part of the People is an indictment which must contain a plain and concise statement of the act constituting the crime, without unnecessary repetition.

"The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone." (United States v. Hess, 124 U.S. 483, 487.) The indictment is the charge of the State against the defendant, the pleading by which he is informed of the fact, and the nature and scope of the accusation. (Matter of Wilson, 140 U.S. 575, p. 585.) (See, also, United States v. Behrman, 258 U.S. 280,288.) Although the Fifth Amendment of the United States Constitution only applies to the United States courts, we must assume that the word "indictment" in the Federal Constitution has the same meaning as the same word in the State Constitution. By amendment to the State Constitution, the grand jury may be abolished and an information presented by the District Attorney to the court may take the place of an indictment. Even then, however, the information must state not only the crime of which the accused is charged, but the nature of the act, or the facts constituting the crime. (Hurtado v. California,110 U.S. 516.) The New York State Constitution has not been amended in this particular, and the requirement still is that for a felony the accused must be charged in an indictment by a grand jury. An indictment is an instrument required by the Constitution, not by the Legislature, stating the crime and the nature of the act constituting it. Such has been the uniform rulings for the United States courts, and such has been the law of every State of this Union, where an indictment was required by its Constitution. (See the collection of cases, Joyce on Indictments [2d ed.], § 281, p. 310.) Cooley on Constitutional Limitations (vol. 1 [8th ed., Carrington], p. 636-7) says that the accusation, whether it be an indictment or information, must be sufficiently specific, fairly to apprise the defendant of the nature of the charge against him, so that he may know what he is to answer and so that the record may show for what he is put in jeopardy. (See, also, Story on the Constitution, vol. 2 [4th ed.], p. 544.)

That an indictment today means just what it did at common law in its essential parts, but without its tautology and verbiage, is the statement found in such cases as State v. Fancher (71 Mo. 460, 463); State v. Corson (59 Me. 137, p. 140);Cathcart v. Commonwealth (37 Penn. St. 108, 114); Newcomb v. State (37 Miss. 383, 397); McLaughlin v. State (45 Ind. 338, 343); Noles v. State (24 Ala. 672, 691); Lambert v.People (9 Cow. 578, 609); People v. White (24 Wend. 520, 570); State v. Davis and Quigg (39 R.I. 276).

The indictment at common law was very exact in stating all the details and incidents of the alleged crime; it was long and verbose, filled with repetitions and legal phrases. Minor misstatements and errors proved fatal, but all of this has long since passed into history, as for a quarter of a century in this State the short form of indictment has been used, which merely states the crime and the substance of the act constituting the crime, in clear and concise language, and as our Code of Criminal Procedure says, without unnecessary repetition. For all the major offenses, like murder, larceny, burglary, rape and the like, forms which have been standardized by custom have been used, against which all technical objections have failed. When the indictment said that John Jones committed the crime of murder in the first degree, in that on the first day of June, 1928, he feloniously killed Jim Smith, with premeditation and intent to kill, this was sufficient to meet all the requirements of the word "indictment," as used in the Constitution. The nature of the crime and the act constituting it were here stated. Whatever influenced our State Legislature to think it could improve upon these customary short forms of indictment is a matter of speculation. Not one of them, so far as my experience and information lead me to believe, has ever been dismissed as insufficient.

However, the Legislature, with a worthy desire at least to satisfy the critics of the administration of the criminal law, made changes in the form of the indictment, apparently thinking that any change, in and of itself, was evidence of improvement.

In the adoption of chapter III-A, added to the Code of Criminal Procedure by chapter 176 of the Laws of 1929, the Legislature has radically amended the form of the indictment, so that it is no longer the accusation intended by the Constitution. The indictment, or the written paper, signed by the foreman of the grand jury or the District Attorney, has always contained, and by the Constitution of the State was required to contain, not only the name of the crime with which the defendant was charged, but also the act constituting the crime. Now the Legislature says that an accusation leaving out the act constituting the crime shall be an indictment. The Constitution of the State of New York cannot be amended in this fashion. Giving to a word in the Constitution by act of legislation a meaning which it never had is violating our fundamentals of government under legal forms. An indictment is an indictment, and the Legislature has no power to make something else an indictment by merely calling it such. An indictment, as used in the Constitution, had in the minds of our people and the framers of every one of our Constitutions since 1821, a definite meaning. It had an identity of being as much as a sheep, a goat or a horse is a distinct species of creation. The nature of the instrument could not be changed by act of the Legislature any more than the Legislature can make a sheep a goat, by calling it such.

While the Legislature undoubtedly has authority to abbreviate and simplify and to a certain extent modify and change the forms of indictments, yet its authority in this respect is limited, and it cannot make an indictment valid and sufficient, in which the accusation is not set forth with sufficient fullness to enable the accused to know what the matter is which he has to meet, and enable the court to see without going out of the record, that a crime has been committed. Where it is provided, as in this State, that a person shall answer a criminal charge of felony only on an indictment or information, such provision places it beyond the power of the Legislature to dispense with the statement in the indictment of the description of the offense. (Joyce on Indictments, § 56; State v. Clay, 100 Mo. 571, 582; State v. Corson, supra; Noles v. State, supra; Brunson v. State,70 Fla. 387; People v. Clark, 256 Ill. 14; and cases heretofore cited.)

Under this chapter III-A of our present Code of Criminal Procedure, adopted in 1929, the form of the accusation, which is now called the "indictment," may accuse the defendant of murder, arson, burglary, larceny, libel, without stating more. The act constituting the offense need not be alleged. Whom the defendant killed, or what he stole, or the act he did, is not required to be stated. The accused is faced with a charge of crime, without knowing what it is. Our criminal procedure, instead of progressing, is going backward, and in the craving for change we have removed all safeguards which have been considered necessary since the days of Star Chamber proceedings.

To meet these obvious objections, the Legislature, in section 295-g of the Code of Criminal Procedure, provided that upon the arraignment of the defendant, the court shall, at therequest of the defendant, direct the District Attorney to file a bill of particulars of the crime charged. But such a bill will state the acts which the District Attorney says the defendant committed, and not what the grand jury accuses him of having done. If we were meeting the requirements of due process of law, required by the Fourteenth Amendment of the United States Constitution, a presentment by the District Attorney, instead of an indictment or a bill of particulars furnished by the District Attorney might be sufficient. We are not dealing, however, with the due process of law provision of the Federal Constitution; we are acting under our own State Constitution, which says that this information must be given by the grand jury in the form of an indictment. A bill of particulars is not now, and never has been a part of the indictment. Not having been found on the oath of the grand jury, a bill of particulars cannot cure the failure of the indictment to sufficiently inform the defendant of the charge made against him. (Joyce on Indictments, § 326; State v. VanPelt, 136 N.C. 633; Commonwealth v. B. O.R.R. Co., 223 Penn. St. 23; State v. Lehigh Valley R.R. Co., 94 N.J.L. 171;United States v. Bayaud, 16 Fed. Rep. 376; Pine and Scott v. Commonwealth, 121 Va. 812; Commonwealth v. Davis, 11 Pick. [Mass.] 432.) The charge against an accused person is not that he has committed crime generally, like murder or larceny, but that he has committed some act which is made a crime by law. That the bill of particulars can never be considered a part of the indictment is reasonable. Suppose, under this emasculated form of indictment which we are now discussing, a defendant is charged with larceny, and without demanding a bill of particulars, he pleads guilty. For what is he to be sentenced; and after sentence, of what has he been convicted? There are many different kinds of larceny defined by our Penal Law. The crime now covers larceny by trick and device, larceny by false representations, larceny through embezzlement, larceny by illegally using an automobile. (Penal Law, §§ 1290-1313.) If the defendant, after sentence on his plea, is again indicted for the crime of larceny, how can he plead and prove prior conviction for the same offense? The New York Constitution provides: "No person shall be subject to be twice put in jeopardy for the same offense." (Art. I, § 6.) To be sure, the grand jury minutes may be examined, but any one familiar with investigations by grand juries knows that frequently the charge of larceny may cover many items of book accounts or misappropriations over years of time. Every investigation of a bank or trust company or of a corporation covers innumerable transactions. If out of such investigation, an officer or director is accused of larceny and pleads guilty, without demanding a bill of particulars, which one of all these items or occurrences forms the basis of the charge and of his punishment? The same reasoning applies to criminal libel. The written matter may appear in a book or an editorial or a news item; which part of it does the grand jury consider the crime? Is the grand jury to determine, or the District Attorney? Our Constitution says that the grand jury shall determine, and accuse the defendant accordingly. The whole thing sums itself up in this: the bill of particulars provision leaves the District Attorney to determine of what the defendant is accused; he is the one chosen to speak for the grand jury, whereas the Constitution requires the grand jury to be the accuser and speak for itself.

While the least fairness to any person accused of crime requires that the information or the indictment on which he is arrested shall state the act or thing which he is accused of doing, another reason, equally as urgent, requires this information to be given in the indictment or the information. To determine when a defendant is subjected to second jeopardy for the same offense, there must be no uncertainty about the act for which he was previously punished. It does not meet this requirement to say he was punished for larceny or assault or libel. He was punished for an act, for a deed which, at a specific time and place, constituted the crime. Therefore, the act must be stated in the accusing charge to guide subsequent courts and prosecuting attorneys. (State v. Corson; United States v. Behrman,supra.)

No case can be found in the United States courts or in the court of any State in this Union where a written accusation has been held to be an indictment which does not state the act or the deed which the defendant committed. Even the procedure in England so frequently and publicly cited for its simplicity and efficiency, requires the indictment not only to state the offense, but the particulars constituting it. (The Indictments Act of 1915, 5 6 George V, ch. 90.)

Unfortunate indeed, that any question should arise in these cases over the sufficiency of the indictment. The defendants committed an atrocious murder, and are clearly guilty. The People of this State and nation have many times been justified in showing impatience with the technicalities and refinements of the criminal law, whereby guilty men have escaped their just punishment. I heartily sympathize with these criticisms, and yet, there are certain fundamental principles which must be followed and obeyed, or else we have chaos, and not law. Every one instinctively feels that a person arrested for a crime and taken to jail should know at once the thing which he is accused of doing, the act which he is said to have committed. This feeling is part of our inheritance from those who struggled against oppression and false and secret accusation, who were subjected to political revenge and the suspicions of State. Whatever may be the cause for this feeling, we know that at the formation of our government, it was written for both nation and State: "No person shall be held to answer for a capital or otherwise infamous crime, * * * unless on presentment or indictment of a Grand Jury;" and we also know that the indictment has always been an instrument charging a crime and stating the nature of the offense. Nothing could be fairer, nothing more fundamental. Following the mandates of this Constitution, which the judges of this State must maintain in all its integrity, I am persuaded that this indictment is bad in not being a legal accusation against these defendants.

The judgment of conviction should be reversed, the indictment dismissed, and the defendants remanded to the county jail to await a new indictment and a new trial.

CARDOZO, Ch. J., POUND and O'BRIEN, JJ., concur with LEHMAN, J.; CRANE, J., dissents in opinion in which KELLOGG and HUBBS, JJ., concur.

Judgment affirmed, etc.