People v. Horton — 42 N.Y. St. Rep. 587

Majority

p. 587

The People, App’lts., v. Alfred Horton, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

Indictment—Sufficiency.

An indictment should show on its face jurisdiction of the offense in the grand jury by which it was found, and it is therefore necessary that it allege that it was committed in the county in which such grand jury was organized.

Appeal by the People from a judgment of the court of sessions of Monroe county, allowing the defendant’s demurrer to an indictment which charged him with the crime of grand larceny in in the first degree.

H. II. Widener, for app’lts; G. G. Davy, for resp’t.

It is indisputable that an indictment should show on its face jurisdiction of the offense in the grand jury by which it was found, and this it cannot do unless it show that the offense was committed in the county in which the grand jury was organized. In that respect the present indictment is clearly defective. It lays the venue of nearly every act and event mentioned, either by an original specification or by a “ then and there,” except of the act which constituted the crime charged, and that was omitted, probably through inadvertence.

The indictment charges, by way of inducement, that, on a day named, at the city of Rochester in the county of Monroe, the defendant was acting as trustee, etc., etc., having theretofore been duly appointed as such by the surrogate of Monroe county then and there having full power, etc.; that he then and there duly qualified as

p. 588

trustee, and thereupon received a sum of money named, then and. there deposited in the savings bank at Rochester, H. Y., the property of the person for whom he was then and there trustee as-aforesaid, and then it proceeds, “And this grand jury do further-say that thereafter and on the said 17th day of October, 1889, the said Alfred Horton did unlawfully and feloniously secrete, withhold and appropriate to his own use, etc., the sum of, etc., good, and lawful money of, etc.”

This was the charging part of the indictment; the act here specified was that which constituted the offense, and to it.no venue is attached; it does not appear that it was committed in the county of Monroe, in which the indictment was found. In this respect it fails to comply with the requirements of the latest and. most liberal of the statutes concerning criminal pleading. Section 281 of the Code of Criminal Procedure prescribes, among the-requisites for the sufficiency of an indictment, that “ it can be understood therefrom that the crime was committed at some place within the jurisdiction of the court.” It cannot be understood from this indictment that the act constituting the crime was committed at any place within the jurisdiction either of the court in which the indictment was found or of that in which the defendant-was arraigned for trial, since no place is named or referred to in which it was committed.

We agree in the opinion of the learned county judge that, for the reason considered, the demurrer was properly allowed.

The judgment appealed from should be affirmed.

Judgment of the court of sessions of Monroe county affirmed.

Macomber and Lewis, JJ., concur.