Hyperlawhypertext legal database People v. Albow 140 N.Y. 130

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People v. Albow

140 N.Y. 130 Court N.Y. Decision date 1893-11-28 English

Delivered by Andrews, Ch. J.

Contents

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The People of the State of New York, Respondent, v. George Albow, Appellant.
(Argued October 24, 1893;
decided November 28, 1893.)

Headnote

While an indictment may be supported by inferences from facts proved which imply the existence of the principal fact constituting the offense, that fact must be charged. It is not sufficient to allege in the indictment the facts from which such inferences may be drawn.
An indictment under the provision of the Penal Code in relation to “Advertising Counterfeit Money ” (§ 527), charged, in substance, that the defendant aided and abetted a scheme for offering for sale or exchange “green goods” by means of circulars and letters, and thereby C. and H. were induced to come to Poughkeepsie in this state to deal with him; that defendant there stated to them that there was a person in New York, who had §100,000 like a one-dollar greenback; that defendant showed C. the good one-dollar note and told him he could exchange §100 of his money for §1,000 of that person’s money, which was as good as the one-dollar bill shown; that defendant asked said C. to go to New York with him to get said money, which defendant “called and designated as goods.” There was no averment that said scheme was to sell or exchange, or to offer to exchange, “counterfeit” money, or what purported to be such. Held, that the indictment was fatally defective.
Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made July 28, 1893, -which affirmed a judgment of the Court of Oyer and Terminer of Dutchess county entered upon a verdict convicting defendant of a violation of section 527 of the Penal Code in relation to advertising counterfeit money.
The facts, so far as material, are stated in the opinion.
Daniel O'Connell for appellant.
When the accused is prosecuted by indictment it must be a good, legal and valid indictment, otherwise he should not be required to plead to it, or to be'put to trial upon it. (U. S. v. Hess, 124 U. S. 483 , 486 ; Rex v. Williams, 1 Leach C. C. 534; U. S. v. Goggin, 1 Fed. Rep. 49 , 51; 1 Bishop on Crim. Pro. [3d ed.] §§ 623-630 ; Reg. v. Jarrald, L. & C. C. C. 307, 308.) The court erred in disallowing the defendant’s demurrer for the reason that the indictment is fatally defective. (Penal Code, § 527;
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People v. Dumar, 106 N. Y. 502 .) The indictment does not properly aver in accordance with the well-settled rules of criminal pleading that there was any scheme or device of the character denounced by the statute which the defendant aided, abetted or assisted. (2 Bishop on Crim. Pro. [3d ed.] §§ 7, 8; Bishop’s Directions & Forms, § 116 ; 1 Wharton’s Precedents of Indicts. § 97; U. S. v. Warner, 26 Fed. Rep. 616 ; Code Crim. Pro. § 276 ; U. S. v. Hess, 124 U. S. 483 .) The indictment is bad for uncertainty. (Code Crim. Pro. §§ 278, 279; 1 Bishop’s Crim. Pro. [3d ed.] §§ 585, 586 ; People v. Wise, 3 N. Y. C. R. 303.) _ The statute makes the act a felony, and the indictment should, therefore, have charged that the act was done feloniously. (Regina v. Gray, L. & C. C. C. 370; People v. Fish, 4 Park. Cr. Rep. 206 .) The circular, letters and telegrams by means of which it is alleged the defendant aided and abetted in the scheme should have been set out in the indictment, or there should have been an allegation that then- contents were unknown to the grand jury. (Bradlaugh v. Queen, L. R. [3 Q. B. D.] 616, 617; Baker v. State, 14 Tex. App. 332 ; U. S. v. Watson, 17 Fed. Rep. 145 ; Rex v. Dodge, 2 East P. C. 1122.) The defendant is not charged with knowledge of any scheme, or of the contents of the circular, letters, etc., or of any unlawful act or purpose. (1 Stark. Crim. Pl. 164; Com. v. Boynton, 12 Cush. 499 ; Com. v. Merriam, 7 Allen, 357 ; U. S. v. Carll, 105 U. S. 611 .) The indictment does not aver that the advice or invitation that the defendant is alleged to have extended to Cassel to come to New York was ever acted upon. (People v. Phelps, 133 N. Y. 267 .) The indictment is drawn in violation of sections 278 and 279 of the Code of Criminal Procedure. (People v. Tower, 135 N. Y. 457 ; People v. Dimick, 107 id. 31; People v. Menken, 36 Hun, 92 ; People v. Dumar, 106 N. Y. 502 ; Code Crim. Pro. §§ 278, 279; Wharton’s Crim. Pl. & Pr. [9th ed.] § 163.) The indictment is not drawn in conformity to the statute, nor are the words used in the indictment equivalent in meaning to the words used in the statute. (1 Bishop’s Crim. Pro. [3d ed.] § 618; Jones v.
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State, 21 Tex. App. 349 ; People v. Phyfe, 136 N. Y. 554 .) The indictment does not contain an averment that the defendant fraudulently intended to convert Cassel’s money to his own use or to the use of any one else, or to defraud or to aid, assist and abet in defrauding Cassel of the same. Unless such was the intent no crime was contemplated or could have been accomplished by the defendant. (U. S. v. Fleming, 18 Fed. Rep. 909 ; U. S. v. Staples, 45 id. 195 ; U. S. v. Smith, Id. 561.) Whatever is newly created by statute draws to itself the same qualities and incidents as if it had existed at common law—in other words, the statute is to be interpreted after the rules and incidents of the common law. (Bishop on Statutory Crimes [2d ed.], § 139; Bishop’s Directions & Forms, § 31; 2 Whart. Crim. Law [9th ed.], §§ 1173, 1185, 1213, 1220, 1224 ; People v. Arnold, 46 Mich. 268 ; State v. Johnson, 1 Chip. 129 .) The indictment does not comply with the provisions of sections 275, 276 and 284 of the Code of Criminal Procedure. (People v. Haight, 26 N. Y. S. R. 33.) If in a criminal case, requiring the strict construction of a statute, the court entertains a reasonable doubt of its meaning, the doubt will prevail in favor of the accused. (U. S. v. Brewer, 139 U. S. 278 , 288 ; Bishop on Stat. Crimes [2d ed.], §§ 194, 218.)
Horace D. Hufcut for respondent.
The indictment in this case plainly discloses and sufficiently charges the substance of the offense prohibited and made criminal under section 527 of the Penal Code. (People v. Martin, 2 N. Y. Cr. Rep. 51 .) If the facts as set forth in the indictment state sufficient to constitute the crime, that is all that is necessary. (People v. Sullivan, 4 N. Y. Cr. Rep. 193 .) It is not necessary under the forms of an indictment now established by the Code of Criminal Procedure, nor by section 284, to use any specific words like “wrongfully” or “feloniously.” (People v. Dunn, 6 N. Y. Cr. Rep. 473 ; Bork v. People, 91 N. Y. 13 .)

We think the indictment is fatally defective in that it does not allege the commission of the ofíense

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created by section 527 of the Penal Code. The section is entitled “ Advertising Counterfeit Honey,” and the purpose of the enactment was to reach the nefarious business of offering or pretending to offer for sale counterfeit money, and inducing people by what is popularly known as the “ green goods” scheme, or similar devices, to invest their money, receiving in return either counterfeit money, or packages purporting to contain counterfeit money, but which in fact contained blank paper, or something of like character. The selling or offering to sell counterfeit money or tokens of value, or what purports to be such, or the aiding or abetting any scheme or device^ having for its purpose the sale or the putting in circulation of counterfeit money or tokens, is the gravamen of the-offense. It is that offense alone at which the statute is aimed, and it has no reference to any other frauds upon the public or individuals.

The indictment alleges that the defendant aided and abetted a scheme for offering for sale or exchange “ green goods,” by means of circulars and letters, and that thereby Cassel and Hogshead were induced to come to Poughkeepsie in this state, to deal with the defendant; that the defendant there stated to Cassel and Hogshead that he would take them to an old gentleman in Hew York, “ wdxo had one hundred thousand dollars like a one-dollar greenback so called, being a treasury note issued by the government of the United States; ” that defendant showed Cassel the good one-dollar note, and told him that he could exchange one hundred dollars of his money with the “ old gentleman ” for one thousand dollars of the old gentleman’s money, which wras as good as the one-dollar bill shown ; that the defendant asked Cassel to go with him to the city of Hew York “ to get said money of the old gentleman, which said money said Albow called and designated as goods,” etc.

There is no averment in the indictment that the scheme which the defendant abetted was to sell or exchange, or to offer to sell or exchange, “counterfeit” money, or what purported to be counterfeit money, and there is no reference whatever in

p. 134
the indictment to that purpose. The offense stated in the statute is not averred., If the facts stated in the indictment were established the jury would undoubtedly infer that it was a scheme to exchange real or pretended counterfeit money for good money. But this would be an inference from the improbability that any other purpose was in the mind of the defendant.. A criminal charge may be and often is supported by inferences from facts which imply the existence of the principal fact constituting the offense. But the principal fact must be charged in the indictment. It is not sufficient to allege the facts from which an inference of the principal fact may be drawn, without charging the principal fact. 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. The strictness which formerly prevailed in respect to unessential matters in indictments, which often defeated the ends of justice, has been properly relaxed. But 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.- It was said by Mr. Justice Field, in United States v. Hess ( 124 U. S. 483 ), in the case of an indictment under a statute of the United States for a fraudulent use of the mails, where essential facts were not averred, “no essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly and not inferentially, or by way of' recital.” This is a sound exposition of the principle governing criminal pleadings, which was disregarded in framing the indictment in the present case.

For the reason that the indictment does not charge the offense described in the statute, the conviction should be reversed.

All concur.

Judgment reversed.

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