
    PEOPLE against THE TOWN AUDITORS OF CASTLETON.
    
      Oyer and Terminer, Richmond County, Second District;
    
    October, 1872.
    Criminal Pleading.—Indictment, for Official Misconduct.—Particularity.—Caption.
    An indictment against persons composing a board of town auditors, for official misconduct in auditing bills, cannot be sustained, if it simply aver that the bills audited were “unjust and illegal,” or “ pretended and extortionate; ” but it also must aver the particular facts which make the accounts “unjust,” &c.
    The caption of an indictment taken at the sessions must state that the grand jurors were then and there sworn and charged. If the indictment is removed from the sessions to the oyer and terminer, the caption should be affixed by the clerk; and' without ,such caption, the indictment is bad on a motion to quash.
    
      It seems, the objection would not be a good one after.the trial on the merits.
    Motion to quash indictment.
    An indictment against certain persons composing the board of auditors of the town of Castleton, was found by the grand jury at the court of sessions of the county of Richmond, at the February term, "1872; and. was afterwards removed to the oyer and terminer, under 3 Revised Statutes, 5 ed., § 86 (§ 76), et seq., pp. 1024, 1025.
    
      The indictment was for alleged “official misconduct,” and consisted of eleven distinct and separate counts.
    Seven of the said counts were in form as follows :
    They charged that “ on the 20th day of November, , in the year one thousand eight hundred and seventy-one,” the defendants were the supervisor, justices of the peace and town clerk of Castleton, " and by virtue of their said offices, there and then constituted a board of auditors, for the purpose of auditing and allowing the accounts of all charges and claims payable by the said town, and then and there duly met at said town as such board of auditors for the^purpose of auditing and allowing such accounts; that one Henrietta S. Winegar then and there presented to such board, to be then and there audited and allowed, a certain unjust, illegal and extortionate charge and claim against said town of Castle-ton, for certain illegal and pretended matters therein stated, namely, for the renting and rent of an office to and for the town clerk of the said town of Castleton, amounting to the sum of fifty dollars.”
    And that said defendants, “so being members of said board of town auditors, and so being such officers as aforesaid, did then and there, to wit, on the day and year, and at the town and county aforesaid, knowingly, willfully and corruptly, audit and allow the aforesaid illegal and pretended charge and claim at the sum of forty-five dollars, they then and there well knowing the same to be illegal, unjust and extortionate, against the form of the statute in such case made and provided, contrary to their duty in their offices aforesaid, and against the peace,” &c.
    Four of the said counts were in form as follows :
    They charged that on November 28th, 1871, defendants were the supervisor, justices of the peace and town clerk of Castleton; “and said officers, by virtue of said offices, constituted the board of town auditors of the said town of Castleton; that, on said day, at said town, said officers were duly met and convened as such board of town auditors, and it there and then became and was the duty of said town auditors to audit and allow all just and legal claims and charges against said town,, which should be presented to them as such auditors, and as should be verified according to law; that in and by section fifty-one, of article five, of title four, of chapter eleven, of part one, of the Revised Statutes of the State of New York, it is provided as follows : No account shall be audited by any board of town auditors, or supervisors, or superintendents of the poor, for any services or disbursements, unless such account shall be made out in items and accompanied with an affidavit attached thereto, and be filed with such account, made by the person presenting or claiming the same, that the items,of such account are correct, and that the disbursements and services charged therein have been in fact made, or rendered, or necessary to be made or rendered, at that session of the board, and stating that no part thereof has been paid or satisfied ; that it was the duty of said officers and of each of them to prevent the auditing and allowing of any bill or claim, or account, which was not made out in items and sworn to as above set forth ; that in violation of their duty as aforesaid, the said officers so composing the board of town auditors aforesaid, and being so met and convened as aforesaid, for the purpose aforsaid, on the day and at the place last aforesaid, did knowingly, willfully and corruptly, and' in violation of their duty as such officers, audit and allow a certain pretended claim or account, there and then presented to them by one * * * against said town, amounting to the sum of one hundred and one-dollars and fifty-six cents, for pretended services of him, the said * * * as supervisor of said town ; that said bill, claim or account was not, at the tune it was so presented to said board of town auditors, nor was it ever made out in items, nor was it accompanied with an affidavit attached to or filed with said claim or account, that the items of said account were correct, and that the disbursements and services charged therein had been in fact made or rendered, or necessary to be made or rendered, at that session of the board, and stating that no part thereof had been paid or satisfied, nor was any affidavit whatever attached to or filed with said claim or account; all which said officers then and there well knew. And the jurors aforesaid do present, that on the day and at the place last aforesaid, in manner and form aforesaid, the said [names of defendants,] so composing said board of auditors, and so met as such as aforesaid, did then and there knowingly, willfully and corruptly audit and allow the said bill and account, and in so doing did knowingly, willfully and corruptly neglect their duty in their offices aforesaid, against the form of the statute in such case made and provided, and against the peace,” &c.
    One of the defendants, by permission of the court, at the October term, 1872, of the oyer and terminer, withdrew his plea of “not guilty,” and moved to quash the indictment, and upon the following grounds:
    I. Because the said indictment and the counts thereof, do not allege and set forth fully and sufficiently the authority whereon the alleged proceedings were based, or facts sufficient to show that, the alleged proceedings were had by any person or persons duly authorized, and their authority and jurisdiction, and that the same were within their juisdiction (Edge v. Commonwealth, 7 Barr [Pa.] 275; Corn v. Ruff, 9 Watts [Pa.], 114; Caldecott [K. B.], 183; 1 Whart., § 285, n. [j.]; State v. Copp, 15 N. H., 212; State v. Hoit, 3 Foster, 335.)
    II. Because said indictment and the counts thereof do not set forth and allege fully and specifically, the acts charged to be the “ final and complete auditing 
      
      and allowing” of the several accounts therein mentioned (People v. Stocking, 50 Barb., 573).
    
    III. Because the matters and things alleged in the first, second, third, fourth, fifth, eighth, tenth, and eleventh counts of the indictment do not constitute any crime under the common law, nor under the statutes of New York, (a.) The duty was judicial, (b.) It involved the determination whether the claim presented was chargeable to the town, (c.) A judicial officer is not indictable unless he acts from bad motives, corruptly. The offense is in the “corruption” and that must be averred (People v. Norton, 7 Barb., 477).
    IV. Because the matters and things alleged in the first, second, third, fourth, fifth, eighth, tenth, and eleventh counts in the indictment are insufficient and bad upon their face, respectively, as being charged and stated indefinitely (People v. Coon, 15 Wend., 277; People v. Wilber, 4 Park. Cr., 24; Sherman v. Board of Supervisors, 30 How. Pr., 173; People v. Stone, 9 Wend., 191; People v. Supervisors of Queens County, 1 Hill, 195; People v. Williams, 4 Id., 9; People v. Thomas, 3 Id., 169). The use of the words “ knowingly,, willfully and corruptly ” in these counts does not make the acts so charged indictable (1 Whart., § 402, n. (f).
    V. Because the second count of the indictment is void for duplicity.
    VI. Because the sixth, seventh, eighth, and ninth counts in said indictment are void for uncertainty, indefiniteness and insufficiency, it not appearing by any reference in said counts, what, if any, statute was violated as therein charged (1 Archbold, 285, 286, n.; 1 Whart., § 364, n. (f.); Id., § 639, n. (p. q.); Id., § 379, n. (m). (a.) The said “counts” are not within* the statute as quoted in the indictment (Laws of 1845, ch. 180, “Act to reduce number of town officers, and town and county expenses, and to prevent abuses in auditing town and county accounts,” amended by Laws of 1847, ch. 490).
    VII. Because there is no “caption” to the indictment when it is brought into this court.
    
      James Emott, William H. Anthon and Edward B. Merrill, for defendant.
    
      Sidney F. Rawson, district attorney, for the people.
   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.
     