People v. Town Auditors of Castleton

13 Abb. Pr. 431, 44 How. Pr. 238

• Court: Court Of Oyer And Terminer New York
• Decided: October 15, 1872
• Status: Published

Opinion

Tappen, J.

The defendant moves to quash the indictment upon the ground of insufficient allegations. The indictment contains a number of counts charging the defendant with official misconduct, in having audited and aided in auditing certain town accounts-against the town of Castleton while the defendant was the supervisor thereof. The insufficiency alleged against the indictment is chiefly that it fails to aver wherein such accounts were unlawful.

There are eleven distinct counts as follows:

1. For auditing a bill of fifty dollars, for rent of town clerk’s office.

2. For auditing a similar bill of one hundred and thirty-one dollars and fifty cents and for filing papers and other services by town clerk.

3. For auditing a bill of seventy dollars to clerk of highway commissioners.

4. For auditing a bill of fifty dollars to clerk of brdge commissioners on Dongan bridge.

5. For auditing a bill of seventy-seven dollars to a deputized constable.

6. For auditing a bill of one hundred and one dollars to the defendant without items or oath.

7. For auditing O’Brien’s claim of eighty dollars without items or oath.

8. For auditing bill of Few Brighton village of fifty dollars without items or oath.

9. For auditing McCarthy’s bill of fifteen dollars without items or oath.

10. For auditing bill of clerk to highway commissioners for seventy dollars.

11. For auditing bill of Dempsey for repairing two bridges.

In the People v. Stocking, one of the supervisors of Erie (50 Barb., 573), the indictment contained averments that the defendant obtained articles for his own use and well knowing the account was not a lawful charge against the county, voted to allow the same, and it was allowed and paid. Here all the ingredients of an offense are well averred. Undoubtedly, the offense alleged against the defendant in the case at bar would amount to a misdemeanor, if proper and sufficient words were used to that end. And the. facts constituting an offense must be stated with as much certainty as the nature of the case will admit, (People v. Dord, 9 Barb., 671).

The accounts which the defendant aided in auditing are described in the indictment as “ unjust, illegal,” or as “pretended and extortionate,” but nowhere does the indictment in any count aver the particular fact which would make the account “unjust, illegal, pretended or extortionate,” and it may very well be that some of the accounts or some portions of the different claims so audited, might not be either “illegal” or “unjust,” and it would relieve the indictment of all doubt as to its sufficiency if the particular fact or facts were averred, which would put the defendant upon his defense at the trial by a timely and proper apprisal in the indictment, of the specific character of the particular, act or offence which he is called to defend and to justify (People v. Gates, 13 Wend., 311-317). So held in People v. Standish, 6 Park. Cr., 111, on an indictment for illegal voting. The indictment in that case averred that the defendant, not being a qualified voter, did “wilfully, knowingly and corruptly ” vote, &c.

And these words of description do not suffice to uphold an indictment without sufficient averments of fact. The language of the court (Welles, J.) in this case is that the facts which give character to the act, and render it criminal should be alleged, otherwise the great object of a pleading, that of informing a party what he is called upon to answer, will be defeated.

The defendant on the motion to quash further objects that the indictment is without proper caption. On a reference to the authorities, it will be seen that it has been held that an indictment taken at the sessions must, in the caption, state that the grand jurors were then and there sworn and charged. The caption should be affixed by the clerk, in case the indictment is removed from the sessions to the oyer and terminer, and in such case, and without such caption, it has been held bad (People v. Geurnsey, 3 Johns. Cases, 265; 3 Wend., 314).

The practice involved in this objection will be found very fully discussed and criticised in People v. John Bell, Add. (Pa.) Rep., 176, 180.

The objection ought not to be a good one after a trial on the merits ;

* but where it is made in due form before trial, it is to receive the consideration sanctioned by the court in that respect.

In 1 Whart. Cr. Law, § 402, it is said the use of the words “knowingly, willfully and corruptly,” do not make the acts so charged indictable. The following authorities are relied upon by the defendant as sustaining the motion to quash ; People v. Norton, 7 Barb., 477 (illegally granting license); People v. Coon, 15 Wend., 277; People v. Brook, 1 Den., 457 (justice refusing to take affidavit); People v. Williams, 4 Hill, 9 (false pretenses); People v. Stone, 9 Wend., 181; People v. Thomas, 3 Hill, 169.

The authorities quoted sustain the views here enunciated, and hold the objection to be well taken, and the decisions indicated show it to be the duty of the court, where motion is made to quash before trial in due time, to grant it.

Metcalf, County Judge, concurred.

Order; that the indictment against defendant be quashed.

See Conkey v. People, 5 Park Cr., 31.