People v. Crotty — 30 N.Y. St. Rep. 44

Majority

p. 44

The People, App’lts, v. Alfred M. Crotty, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed February 15, 1890.)

Headnote

1. Criminal law—Jurisdiction—Indictment.

The defendant, as alleged, promised at Oswego to marry a woman, and on the same day went with her to Watertown in another county, and there seduced her under such promise. He was indicted in Oswego county. The indictment charged in the first count seduction at Water-town under promise of marriage; second, the promise at Oswego, and on the same day seduction under such promise at Watertown; third, that defendant at Oswego inveigled complainant from there to Watertown for purposes of prostitution. Held, that the grand jury of Oswego county had jurisdiction; also that the indictment was not bad as charging more than one crime.

2. Same.

- The acts complained of may constitute didf erent crimes, and so, within § 279, Code Criminal Procedure, such crimes may be charged in separate counts.

Appeal from a judgment entered in Oswego county sustaining a demurrer to an indictment. The decision sustaining the demurrer was made at a court of oyer and terminer in said county in Movember, 1889. The grounds of demurrer were as follows :

“ First. That the grand jury by which the said indictment was found had no legal authority to inquire into the crime charged, by reason of its not being within the local jurisdiction of Oswego county.

“ Second. That more than one crime is charged in the indict ment, within the meaning of §§ 278 and 279 of the Code of Grim. Procedure.”

The indictment by the grand jury of Oswego county contained three counts: First, it charged that defendant at Watertown, in the county of Jefferson, seduced L. E. B. under promise of mar

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riage; second, it charged that defendant at Oswego promised to marry L. E. B., who then and there promised to marry defendant, and that on the same day at Watertown he seduced and had intercourse with said L. E. B. under said promise of marriage, and that in the manner and by the means aforesaid defendant committed the crime of seduction under promise of marriage; third, it charged the crime of abduction, in that defendant at Oswego inveigled and enticed L. E. B. from Oswego to Watertown and into a hotel for the purpose of prostitution and sexual intercourse.

Merrick Stowell, dist-att’y, for app’lts; S. B. Mead, for resp’t.

Upon an inspection of the indictment we are of the opinion that the grand jury of Oswego county had jurisdiction to find the indictment in question.

By § 134 of the Code of Criminal Procedure it is provided as follows: “ When a crime is committed partly in one county and partly within another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.” The People v. Dimick, 41 Hun, 633 ; 3 N. Y. State Rep., 398.

2. Section 278 of the Code of Criminal Procedure lays down a rule that, “ The indictment must charge but one crime and one form, except as in the next section provided,” and § 279 is as follows: “ The crime may be ’charged in separate counts to have been committed in a different manner or by different means; and where the acts complained of may constitute different crimes, such crimes may he charged in separate counts.”

By § 284 of the Penal Code it is provided, viz.: “A person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment for not more than five years, or by a fine of not more than §1,000, or by both.”

By § 282 of the Penal Code it is provided, viz.: “A person, who * * * (subdivision 2), inveigles or entices an unmarried female of previous chaste character into a house of ill-fame, or of assignation or elsewhere, for the purpose of prostitution or sexual intercourse * * * is guilty of abduction, and punishable by imprisonment for not more than five years, or by a fine of not more than $1,000, or by both.”

From an inspection of the indictment we think, “ the acts complained of may constitute different crimes,” and therefore within the provisions of § 279 of the Code of Criminal Procedure, “ such crimes may be charged in separate counts.”

It is quite manifest from an inspection of the indictment that the acts and circumstances referred to in the different counts of the indictment relate to the same transaction, and we may appropriately repeat the language of Talcott, J., in Taylor v. People, 12 Hun, 217 , where he says, viz.: “ Manifestly, but one transaction is intended to be described in all the counts contained in this indictment.”

In The People v. Menken, 3 N. Y. Crim. 233 , we held, viz.: “The indictment may state the acts constituting the crime in dif

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ferent counts, appropriate to meet the evidence which may be presented on the trial.”

In People v. Lenhardt, 4 N. Y. Crim. 317 , it was held that, “Under § 279, Code of Criminal Procedure, two distinct misdemeanors, e. g., conspiracy (Penal Code, § 168, subd. 5) and coercion (§ 653, subd. 3) may be set up in different counts of the same indictment, wherein the acts complained of in each case are the same, and constitute the different crimes.”

In People v. Callahan, 29 Hun, 580 , it was held “proper to join in an indictment two counts, one charging robbery and the other larceny, where each charge is founded upon the taking of the same articles of personal property from the same person at the same time and place; one charging it to have been taken with, and the other without violence to the person of the owner;” and in speaking of the indictment in that case, Smith, J., said : “ It is to be inferred from the identity of description, time and place that the two counts referred to one and the same transaction.”

By an inspection of the different counts of the indictment of the case in hand we are of the opinion that the indictment refers to one transaction, and that the case falls within the provision of § 279 of the Code of Criminal Procedure, which provides that “where the acts complained of may constitute different crimes, such crimes may he charged in separate counts.” People v. Infield, 1 N. Y. Crim. 146 ; People v. Cole, 2 id., 108.

We think the decision of the oyer and terminer of Oswego comity and the judgment entered thereon should be reversed, and the demurrer overruled, “with the liberty to the defendant to plead to the indictment, and in the event of his failing to do so a plea of 1 not guilty ’ must 'be entered, as provided by § 330 of the Code of Criminal Procedure.” See People v. Cole, supra.

Order and judgment reversed and demurrer overruled, with liberty to the defendant to plead, and the clerk directed to enter judgment and remit a certified copy thereof with the return and decision of this court to the court of oyer and terminer of Oswegocounty, pursuant to §§ 547 and 548 of the Code Crim. Procedure.

Merwim, J., concurs; Martim, J., concurs in result.

Cases cited

People v. Menken 3 N. Y. Crim. 233 N.Y. Sup. Ct. p. 45
People v. Lenhardt 4 N. Y. Crim. 317 N.Y. Ct. Gen. Sess. p. 46
People v. Infield 1 N. Y. Crim. 146 N.Y. Ct. Gen. Sess. p. 46