
    The People of the State of New York, Appellant, v. Frank E. Klipfel, Respondent.
    
      Grime of procuring audit of a false claim—allegations of facts essential thereto which also state another crime.
    
    An indictment purporting to charge the defendant, a member of the board of supervisors of the county of Erie, with the crime, defined in section 165 of the Penal Code, of auditing and allowing a false and fraudulent claim against that county, alleged in substance that the defendant introduced and caused to be adopted by the board of supervisors a resolution directing that an order be drawn on the county treasurer in favor of the defendant and certain other county officials for expenses alleged to have been incurred by them; that the claim was, and was known by the defendant to be, false and fraudulent, and that he presented it for audit to the county auditor, who allowed the same. Under chapter 173 of the Laws of 1895 it is made the duty of the county auditor of Erie county to examine and report upon all claims against the county before the same are audited or ordered paid by the board of supervisors, it being essential to a complete audit that a claim should be acted on both by the county auditor and by the board of supervisors.
    
      The indictment was demurred to upon the ground, among others, that, in violation of the provisions of sections 278 and 279 of the Code of Criminal Procedure, more than one crime was charged therein in one count.
    
      Held, that although the presentation of the claim to the auditor, if it were fraudulent, was a crime within the provisions of section 672 of the Penal Code, and not within the provisions of section 165, under which he was indicted, yet that the fact that certain of the defendant’s acts alleged in the indictment, when standing alone, constituted a crime under section 672, did not render the indictment demurrable where those acts were essential ingredients of the crime specified in section 165.
    
      SemMe, that, in order to convict the defendant under section 165 of the Penal Code of having procured a full and complete audit of the alleged fraudulent claim, it would be necessary to prove every fact alleged in the indictment in question, and that if any of the facts alleged therein had been omitted therefrom such omission would render it defective.
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 26th day of May, 1898, upon the decision of the trial justice sustaining the defendant’s demurrer to the indictment, purporting to charge the defendant with the crime of auditing and allowing a false and fraudulent claim against the county of Erie.
    
      Thomas Penney and Daniel J. Kenefick, District Attorney, for the appellant.
    
      W. H. Ticknor, for the respondent.
   McLennan, J.:

The indictment in question alleges in substance that at all the times mentioned in the indictment the respondent was a member of the board of supervisors of the county of Erie; that on the 6th day of October, 1896, the respondent introduced and caused to be adopted by the board of supervisors a resolution directing that an order be drawn on the county treasurer of Erie county, in favor of the respondent and certain other county officials, for certain expenses alleged to have been incurred by them; that the claim was false and fraudulent, and was so known to be by the respondent; that the respondent presented such claim to the county auditor for audit, and that said auditor allowed the same.

The indictment was demurred to upon the ground, among others, that more than one crime is charged in the indictment in one count, in violation of the provisions of sections 278 and 279 of the Code of Criminal Procedure.

Section 278 provides: “ The indictment must charge but one ■crime and in one form, except as in the section provided.

“ § 279. 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 be charged in separate counts.”

Section 165 of the Penal Code provides as follows: “ A public officer * * * a part of whose duties it is to audit, allow or pay, or take part in auditing, allowing or paying, claims or demands upon the State or such county, town, city or village, who knowingly audits, allows or pays, or directly or indirectly consents to or in any way. connives at the auditing, allowance or payment of any claim or demand against the State or such county, town, city or village, which is false or fraudulent, * * * is guilty of felony.”

Section 672 of the Penal Code provides : “ A person who knowingly, with intent to defraud, presents for audit or allowance or for payment, to any officer * * * of any county * * * authorized to audit or allow, or to pay bills, claims or charges, any false or fraudulent claim, bill, account, writing or voucher, or any bill, account or demand containing false or fraudulent charges or claims, is guilty of a felony.”

The indictment in this case assumes to charge the crime specified in section 165 of the Penal Code. The 1st clause of the indictment states:

“The grand jury of the county of Erie by this indictment accuse Frank E. Klipfel of the crime of knowingly auditing and allowing, and consenting to and conniving at the auditing and allowing, of a false and fraudulent claim against a county, while then and there being a public officer, a part of whose duties was to take part in auditing claims and demands against said county.-” •

Substantially the same allegation is made the concluding part of the indictment, following the words “ and so the grand jury aforesaid do say.”

In the body of the indictment, however, all the acts of the respondent which in any way related to the allowance of the alleged fraudulent claim are fully set out. Such statement of the defendant’s connection with the claim in question, it is urged, charges two separate and distinct crimes, one under section 165 of the Penal Code referred to, and the other under section 672.

By chapter 173 of the Laws of 1895 the office of county auditor was created for the county of Erie. By that act it was made the duty of such county auditor to examine and report upon all claims against the county for services, etc., to the board of supervisors of such county, before the same are audited and ordered paid by said board, it is made his duty, before reporting to the board of supervisors, to ascertain whether such claims are just and true; whether the services charged for have been rendered. After such claim is examined, audited and reported upon by the auditor, the board of supervisors is then in position to act upon such claim and order it paid.

Under the statute as it existed at the time when the alleged ofíense charged in the indictment was committed, the regular way of procuring an audit of any claim against the county of Erie was first to present such claim to the county auditor, and if allowed by him then to present such claim with the auditor’s report to the board of supervisors, and procure the adoption of a resolution authorizing the payment of the same. It was essential to a complete audit that the claim should be presented to the county auditor, and acted upon by him as well as by the board of supervisors.

It is of no consequence that the respondent in this case first procured a resolution of the board of supervisors to be adopted, authorizing the payment of the claim, and that he then presented the claim to the auditor for allowance by him. Both were necessary to complete the audit of the claim.

It is clear that presenting the claim, if fraudulent, by the respondent to the auditor, was a crime within the provisions of section 672 of the Penal Code, but that was not the crime for which the respondent was indicted. He was indicted for procuring the audit of a fraudulent claim, in violation of the provisions of section 165 of the Penal Code, and the fact that certain of the respondent’s acts, when standing alone, constituted a crime under section 672, cannot be of importance when those acts were essential ingredients of the crime specified in section 165.

In order to convict the respondent under section 165 of the Penal Oode of having procured a full and complete audit of the alleged fraudulent claim, it would be necessary to prove every fact alleged in the indictment in question, and if any of the facts alleged were omitted therefrom it would be defective.

As before said, the fact that certain of the acts alleged which were necessary to complete the offense under section 165, when taken by themselves constitute another and distinct offense under another section of the Penal Oode, cannot be of consequence. Else it would be impossible to prepare a proper indictment charging a person with the offense specified in section 165, because it would be impossible to allege all the facts constituting that offense in one count, without being subject to the objection urged on behalf of the respondent in this case, viz., that the facts alleged in such indictment constituted two crimes.

The judgment sustaining the demurrer should be reversed, and the demurrer overruled.

All concurred, except Ward, J., not voting.

Interlocutory judgment reversed and demurrer overruled, with leave to the defendant to plead anew.  