People v. Herman — 6 N.Y. Crim. 194

Majority

p. 194

Supreme Court-General Term-first Department.

May, 1887.

PEOPLE v. HERMAN.

Headnote

Amendment of Indictment.—Section 293 of the Code of Criminal Procedure.

.'Section 393 of the Code of Criminal Procedure,—permitting the amendment of indictments,—is constitutional.

In an indictment for larceny it is regular and proper to allege the ownership of the stolen property to be in the lawful custodian or bailee.

Under section 393 of the Code of Criminal Procedure,—allowing the amendment of an indictment,—the court has power to allow, upon a trial for larceny, to meet the variance of proof, the indictment to be amended by changing the name of the owner of . the property from the name of the alleged owner,—e.g. The Bay State Shoe and Leather Company,—to the name of the bailee or custodian,—e. g., the superintendent of that company, from whose custody a,nd possession the property was taken.

The exception to the power of amending an indictment by a change

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of a name of a person is wherever the identity of the particular individual is material and made a part of the offense charged.

Appeal by defendant, Francis Herman, from a judgment rendered against him in the Court of General Sessions of the Peace of the City and County of Hew York, upon the verdict of a jury convicting him of the crime of grand larceny in the second degree, as charged in the indictment.

The appellant was indicted, in the Court of General Sessions, for the larceny of certain goods, the property of “a certain corporation called the Bay State Shoe and Leather' Company.” At the trial, the material allegations of the indictment were sufficiently proven, including the averment of ownership, excepting that there was no proof of the existence of the corporation in question. The people having rested, the appellant moved for an acquittal, upon the ground of this defect of proof. The court thereupon permitted the people to recall a witness, Charles W. Bucklin, who testified that, at the timé of the alleged larceny, he was the superintendent of the said corporation, and that the goods in question were in his care and custody, and were taken therefrom without his consent, and without the consent of the said company. The court thereupon denied the motion for an acquittal, and directed the indictment to be amended by striking out the name of the “Bay State Shoe and Leather Company,” and inserting, in lieu thereof, the name of the witness, Charles W. Bucklin, so that the indictment, as amended, laid the ownership of the goods in Charles W. Bucklin. This was done against the objection of the appellant, and subject to his exception. The appellant having been convicted, judgment was rendered against him, from which lie appealed to this court.

Abraham Suydam, for defendant,.appellant.

I. The court had no power to permit the amendment of the indictment in any matter of substance. Ho such power can be claimed, except under section 293 of the Code of Criminal Procedure. That section is unconstitutional and

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void, because it violates article I., section 6, of the Constitution of this State, which provides: “No person shall be held to answer for a capital or otherwise infamous crime . . . unless on presentment or indictment of a grand jury.”

If an indictment, once filed, can be amended by the court, it is no longer the indictment of a grand jury, but becomes the indictment of a grand jury and the court. If the legislature can vest in the court the power to amend an indictment in one matter of substance, it can give the same-court power to amend the indictment" in any other matter of substance. The substance of the indictment may be wholly changed—even to the extent of charging a different crime. If the legislature has power to authorize a court to tamper at all with the substance of an indictment, where is the limit to such power? None can be found, and if there be none, then the constitutional provision is completely nullified. Bish. Crim. Proc. §§ 95-98, and eases cited; Id. §§ 708-711.

II. Even if the section in question was valid, it would not authorize the amendment in question. That section authorizes an amendment in the “ name or description of any person, place or thing.” Here we have, by way of amendment, not the correction of an erroneous name of a person, but the substitution of the name of one person for the name of another person, the name of a natural persou for that of a corporation. The case of People v. Poucher, 1 N. Y. Crim. Rep. 544 , is in point. The indictment charged the larceny of gold and silver coins, and the proof was that the property stolen consisted of bank bills. The indictment was then amended so as to make the description correspond to the proof. This was held error. The court said that the amendment did not change the description of the thing named, but it substituted for the thing named an entirely different thing.

Randolph B. Marline, district-attorney, and M. Kenzie-Semple (assistant), for the people, respondent.

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I. The name of the owner of property stolen is not a material part of the offense charged in the indictment, but is a mere matter of description to identify the transaction so that the defendant, by proper plea, may protect himself against another prosecution for the same offense; and it is so far regarded as matter of description merely, and not of substance, that the name of the owners may be alleged as unknown if such be the fact. 2 Bish. on Crim. Proc. §§ 718, 548 ; State v. Bell, 65 N. C. 313 ; Roscoe Crim. Ev. (7 Am. ed.) 660, 661; Mulrooney v. State, 26 Ohio, 326 .

II. Formerly, before the adoption of the Code of Criminal Procedure, it was the inflexible rule that the name of the person in whom property was laid, although matter of description, must be proved according to the indictment. But the rule is now changed by the Code of Criminal Procedure. Code Crim. Pro. § 293.

III. The constitutionality of this provision was recognized without question in People v. Poucher, 1 N. Y. Crim. Rep. 544 ; and was upheld by a divided court in People v. Johnson, 4 N. Y. Crim. Rep. 591 .

IV. The constitutionality of similar statutory provisions has been recognized without question by the highest courts of several of the States. Mulrooney v. State, 26 Ohio, 326 ; Commonwealth v. O’Brien, 2 Brewster, 566; Haywood v. State, 47 Miss. 1 .

V. The object of this section of the Declaration of Bights,, art. 1. § 6, Constitution, was to secure substantial privileges and benefits to parties criminally charged, and not to require particular forms, except where they are necessary to the purposes of justice and fair dealing toward the accused so as to insure a full and fair trial; and it does not impose any limitation upon the power of the legislature to promote the ends of the justice by taking away a purely technical objection, provided it leaves the accused fully and fairly informed of the nature of the charge against him, and affords him ample opportunity for interposing every meritorious defense. This was the interpretation adopted by

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the Supreme Court of Massachusetts of a corresponding section of the Constitution of that State expressed in language much stronger even than ours. The language of the Massachusetts Bill of Bights is that no person “ shall be held to answer for any crime or offense until the same is-fully and plainly, substantially and formally described to him.” But it was held that there was no constitutional objection to a statute enacting that no variance between an instrument produced in evidence on the trial of a criminal action and a recital or description in the indictment whereon trial is had, should be fatal, provided the identity is evident and the property sufficiently described to prevent all prejudice to the defendant. Commonwealth v. Holly, 3 Gray (Shaw, Ch. J.), 458; Commonwealth v. Hall, 97 Mass., 570 . Such, also, was the doctrine announced by the Supreme Court of Ohio in a larceny case similar to this, in which they held that a law which precludes a defendant in a criminal case from taking advantage of variances which do not prejudice him was not violative of that section of the Ohio Bill of Bights which provides; in the exact words of our Constitution, that no person shall be held to answer for a capital or otherwise infamous crime unless on the presentment or indictment of a grand jury. Lasure v. State, 19 Ohio, 43 . And the same principles have been announced in a class of cases upholding the constitutionality of laws which merely modify, simplify and reduce the essential allegations in a criminal indictment, retaining the charge, of a distinct offense. State v. Larned, 47 Me. 426 ; State v. Corsan, 59 Id. 137.

The indictment charged the defendant with having feloniously stolen, taken, and carried away a case of shoes of the value of $35, and seventeen pairs of shoes of the value of $3 each pair, of the goods, chattels, and personal property of a certain corporation, called the Bay State Shoe & Leather Company. On the trial the people failed to produce proof of the incorporation of the

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Bay State Shoe & Leather Company, but it appeared by the evidence that Charles W. Bucklin was its superintendent, having the lawful possession, care, and custody of the property mentioned in the indictment. ' Before this evidence was taken an application was made, on behalf of the people, to amend the indictment by inserting the statement in it that Charles W. Bucklin was the owner of the stolen property. That amendment was made, and to the direction permitting it to be done, the defendant excepted, and an application was made for his discharge for this reason, after all the evidence had been given upon the trial.

Whether the court was right in permitting this amendment to be made to the indictment is the sole objection raised in support of the appeal. The amendment was made under the authority contained in section 293 of the Code of Criminal Procedure. That section has provided when a variance between the allegation" contained in the indictment and the proof, shall arise in respect to time, or in the name, or description, of any 'place, person, or thingj the court, in its judgment, if the defendant cannot be prejudiced in his defense on the merits, may direct the indictment to be amended according to the proof. It has been further provided, by section 281 of the same Code, that when the offense charged involves a private injury, and has been described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material. The section under which the amendment was allowed was considered by the learned counsel for the defendant to have been an infraction of some of the provisions of the constitution of the State at the time when the appeal was taken, but that was held otherwise in the case of People v. Johnson, 4 N. Y. Crim. Rep. 590 . And it is conceded that the same conclusion is substantially sustained by an unreported decision made by the Court of Appeals. And a similar statute was held to be constitutional, in Miller v. State, 53 Miss. 403 ; and it was followed in Peebles v. State, 55 Id. 434 .

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The section itself providing for the améndment of an indictment has been enacted in very broad language, and it has provided for a variance between the allegation in the indictment and the proof respecting the name of the owner of the property charged to have been stolen. Such a variance did appear upon the trial of this indictment, and it was to correct and avoid it that the amendment was made. The name of the owner of the property was no material attribute whatever of the crime charged to have been committed by the defendant. It was included in no act of his in the way of the commission or consummation of the crime. That was committed by feloniously taking or stealing the property mentioned in the indictment. It was not essential to the crime that the property should be owned by any particular corporation or person, atid the principal object of inserting the name of the owner in the indictment, was to enable the prosecutor to prove the fact that the property was taken without the consent of such owner. The amendment could in no manner prejudice the defendant in his defense on the merits, for the gist of the charge was that he had feloniously stolen this property. And he was as well able to secure his acquittal, or to meet and remove the charge, if he had the ability to do so, with the name of the superintendent inserted in the indictment as the owner, as he would have been if the name of the corporation itself had remained as the owner of the property. The proof as to the absence of consent would be precisely the same in either instance, as long as the fact was that the superintendent was the custodian and in the possession of the property. It was by. his testimony, and his testimony alone, or evidence equivalent to that by which proof of this fact could legally be made.And as he was the custodian or bailee of this property it was regular and proper to allege him to have been the owner under the legal settled rule of practice governing this subject. 2 Bish. Crim. Pro. §§ 719-720, and notes containing references to the cases.

At the common law it is entirely clear that this amend

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incut could not have been made to the indictment. 1 Bish. Crim. Pro. §§ 708-711; Ex parte. Bain, 121 U. S. 1 ; McBride v. Commonwealth, 13 Bush (Ky.), 337. But where this rule has been abrogated and changed by statute, as it now has in this State, there the practice has been to permit similar amendments to be made by the court to an indictment. In State v. Bell, 65 N. C. 313 , an indictment was held to be good which contained the initial letter of the first name of the person mentioned in it.

And in Mulrooney v. State, 26 Ohio, 326 , under a statute similar in its effect to the law of this State, an averment of ownership in two persons was held' not to entitle the defendant to an acquittal when it appeared by the proof that the title was vested in one of the persons named. In State v. Manning, 14 Tex. 402 , the defendant pleaded in abatement to the indictment the incorrect statement of an initial middle letter of his name, and that was held to be amendable under an act passed after the offense had been committed. The principle there stated by the court is especially applicable to this class of cases. For, it was declared in the opinion, the name by which the party was indicted could have nothing to do with the question of his guilt, the character of the offense, the measure or degree of criminality, the punishment attached to it, or with the evidence which should be sufficient to warrant a conviction. Id. 406 .

This principle was followed in People v. Johnson, supra, where the surname “ Olyphant” was changed to “ divert,” and the name “ Wilna,” as the town named in the indictment, was changed to “ Champion,” and that the court on appeal held to be authorized by this section of the Code.

The same practice was pursued and sanctioned in State v. Jenkins, 60 Wis. 599 , where an information against the defendant for receiving "stolen property was allowed to be amended by adding the name of the person committing the ■theft.

In State v. Snow, 30 La. Ann. part 1, 401, a change was allowed to be made upon the trial in the date of a forged

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bill. And in Munch v. State, 51 Miss. 675 , the indictment was amended by changing the name of the owner of an animal, alleged to have been criminally marked, from John Barton to John Thomas Barton. And in Miller v. State, supra, the surname of Blackman was changed to Blackburn.

Statutory provisions of a similar description are con_ tained in chap. 100 of 14 & 15 Vict. § 1; and chap. 45 of 12 & 13 Vict. § 10. And under' these provisions a case similar to that now presented arose in Reg. v. Fullarton, 6 Cox C. C. 194, where the title to stolen property was laid in the wrong person, and it was held that the indictment might be amended as it was in this respect upon the trial. This practice was also followed in Reg. v. Vincent, 2 Dennison C. C. 464. There the change was made from the name of Matthew Archard to London Dock Company. And a somewhat similar change was allowed in Reg. v. Pritchard, 8 Cox C. C. 461, under a still earlier statute, enacted during the reign of George IV. This practice was. also followed in the case of an indictment with intent to kill, in Reg. v. Welton, 9 Cox C. C. 297. And the addition of the word “trustees ” to the names of the persons mentioned in the indictment, was permitted in Reg. v. Marks, 10 Cox C. C. 367. And in the description of the offices of certain justices named in an indictment for perjury in Reg. v. Weston, 11 Cox C. C. 93. These authorities are evidently sufficient to sustain the course taken upon the trial of the defendant. The amendment was within the language of this section of the Code, and the authority for making it is-very fully sustained by the decisions, where they have arisen either under this, or other equally effectual statutory provisions. Where, however, the identity of the particular individual is material and made a part of the offense charged, as was the accusation in State v. Morgan, 35 La. Ann. 1139 , which was an indictment for a rape, or in the case of the sale of liquor, as was the fact in Blumenberg v. State, 55 Miss. 528 , there a change in the name of the person has not been permitted to be made. These cases are, however, ex

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ceptional, having no relevancy or bearing upon the disposition of this appeal. The conviction was accordingly right, and it should be affirmed.

Van Brunt, P. J., and Brady, J., concur.

Cases cited

Ex Parte Bain 121 U. S. 1 SCOTUS 1887-03-28 p. 201