
    The People, App’lt, v. Benjamin W. Winner, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 14, 1894.)
    
    1. Criminal law—Indictment—False pretenses.
    An indictment for false pretenses should state, with reasonable certainty, the representations actually made, the falsity thereof, and the facts intended to he relied upon to establish s.icli falsity.
    
      2. Same—Motion to quash—When to be made.
    A motion to quash an indictment for insufficient averment of facts may be made at any stage of the proceeding.
    Appeal from a judgment dismissing an indictment
    
      David S. Hill (John W. Lyon, of counsel), for app’lt; T. F. Bush, for resp’t.
   Putnam, J.

—The defendant was indicted by the grand, jury of Sullivan county for the alleged offense of obtaining the signature of one James Schoonmaker to a written instrument by false pretenses. After charging the crime, the indictment stated the acts constituting the crime as follows: “The said Benjamin W. Winner, at said time and place, falsely pretended and stated to said James Schoonmaker that his real estate at Liberty, Sullivan county, New York, was free and clear of and from all liens and incumbrances by mortgage or otherwise, which said false pretense or pretenses were made for the purpose of inducing said James Schoonmaker to sign his name and indorse, for the use and accommodation of said Benjamin W. Winner, a certain negotiable promissory note, made and executed by said Benjamin W. Winner, bearing date September 8, 1890, for the sum of six hundred dollars, payable one month after date, at the Merchants and Manufacturers’ National Bank, located at Middletown, N. Y., and by color or aid of said false pretenses, so made, as aforesaid, by the said Benjamin W. Winner, the said James Schoonmaker, believing them to be true, did sign his name on the back of said note, as an indorser thereof, by reason whereof he was made to suffer great financial loss and damage.”

■ The case came on for trial at the court of sessions of said county. After the jury were empaneled and sworn, and presumably after the defendant had pleaded, a motion to quash the indictment on the ground that it did not allege facts sufficient to constitute a crime was entertained by the court, and granted, and from the judgment of dismissal of the indictment the people appeal.

It is plain that the indictment in question failed to apprise the defendant of what he should be prepared to answer on the trial. It recites that he falsely pretended and stated that his real estate was free and clear of incumbrances. But it does not state in what regard such representations were false; whether the real estate was incumbered by a mortgage, or judgment, or mechanic’s lien, or otherwise. Had it alleged that the premises in question .were incumbered by a mortgage, describing it, the defendant on the trial, perhaps, could have shown that the mortgage was satisfied. If the indictment had stated that the incumbrance was a judgment, defendant might have been able to show that the judgment had been reversed. If the incumbrance had been stated as a mechanic’s lien, defendant possibly could have shown that such lien was invalid. As the indictment was drawn, however, the respondent was'compelled to enter into the trial without being apprised of the real charge upon which the people intended to rely. We think the indictment should have stated with reasonable certainty the representations actually made, the falsity thereof, and the facts intended to be relied upon to establish such falsi ty. It has been held that an “ indictment upon a statute must state all such facts and circumstances as constitute the statute offense, so as to bring the party indicted precisely within the provisions of the statute.” People v. Allen, 5 Denio, 76-79; People ex rel. Phelps v. Court of Oyer and Terminer, 83 N. Y. 438-448. In the opinion in People v. Stone, 9 Wend. 182-191, the following language is used : “ It is not necessary to negative all the pretenses set forth in the indictment. Those relied upon by the pleader, and which he expects to prove were false, must be specifically and directly negatived. It is not sufficient to charge that the defendant falsely pretended, etc., setting forth the means used, and then to aver that, by means of such false pretenses, he obtained the property ; but the pleader must go on, as in an assignment of perjury, and falsify, by specific and distinct averments, such of the pretenses as he intends to prove upon the trial were used and were false. 3 Chit. Cr. Law, 762, 999; 2 Chit. Cr. Law, 163, 311; Rex v. Perrott, 2 Maule & S. 379. The object of this specification is to give notice to the defendant of what he is to come prepared to answer.”

The same doctrine was stated in People v. Miller, 2 Parker, Cr. Rep. 197, and in Barber v. People, 17 Hun, 366. It will be seen that, under the doctrine laid down in the above cases, the indictment under consideration was clearly defective and insufficient. It failed to falsify, by specific and distinct averments, such of the pretenses as the pleader intended to prove on the trial were made and were false. The doctrine settled by the decisions above referred to, and many other similar cases, has not been abrogated by the Code of Criminal Procedure. That act requires “ a plain and concise statement of the acts constituting the crime.” In People v. Dumar, 106 N. Y. 502-512 ; 11 St. Rep. 19, it is held that: “ The general principle of pleading has not been substantially changed. Under either system, an offense consists of certain acts done or omitted under certain circumstances, and under neither is any indictment sufficient which does not accurately and clearly allege all the ingredients of which the offense is composed, so as to bring the accused within the true meaning and intent of the statute defining the offense. Under the former, this end was secured by rules formulated and applied by the courts through long series of decisions; under the latter, it is made imperative by the provisions of the statute.”

To the same effect, see,'also, People v. Albow, 140 N. Y. 130-134 ; 55 St. Rep. 253. Under the above authorities, it does not require discussion to show that the indictment in question was insufficient, and we conclude, therefore, that the court below did not err in so holding.

But the appellant insists that it was error for the court below to grant the motion to quash the indictment after the defendant had pleaded, and after the case had come on for trial before the jury; that the only proper course for defendant, at that time, was to wait until the evidence had been submitted, and then move for a dismissal. And the appellant cites § 315 of the Code of Criminal Procedure. That section, we think, must be deemed to apply to a motion to dismiss on the grounds authorized by § 313; that is, when an indictment is not indorsed and presented as prescribed by §§ 268-272 of the said Code, or when a person has been permitted to be present during the session of the grand jury where the charge embraced in the indictment was under consideration. Certainly, an indictment being insufficient, —not alleging facts sufficient to constitute a crime, and under which a defendant could not be convicted,—the court before whom such defendant is brought for trial should possess the right, at any stage of tile proceedings, to grant a motion to quash it. Nor can the people be injured by such a disposition of the case. We think a motion to quash or set aside an indictment, upon a ground which would be fatal to a verdicf, may be made at any time. The court should not be compelled to spend time in a trial which must be futile. See Abb. Tr. Brief, § 51; People v. Davis, 56 N. Y. 95-100; People v. Judson, 11 Daly, 1; Code Cr. Pro. § 331.

We, therefore, conclude that the judgment should be affirmed.

All concur.  