
    Court of Appeals.
    October 10, 1899.
    PEOPLE v. FRANK E. KLIPFEL.
    1. Indictment—Duplicity.
    An indictment, containing but one count, and charging therein two distinct crimes, is bad for duplicity.
    2. Same—Demubbeb.
    The objection not only may, but must be, taken by demurrer.
    3. Same—Duplicity.
    The test by which to determine whether a single count in an indictment is bad for duplicity is, could the defendant under it be convicted of either one of the crimes charged therein, should the district attorney elect to waive the other ?
    4. Same.
    The facts alleged in a single count of an indictment may disclose the commission of more than one crime by the defendant, and yet not contravene the statute, which does not undertake to cramp the pleader in his statement of the facts.
    6. Same.
    Though the facts alleged describe two crimes, the defendant must also be charged with two crimes, in order to render the indictment bad for duplicity.
    6. Same.
    Where the indictment describes the commission of certain acts that constitute a crime under section 672 of the Penal Code, it must charge that defendant committed such a crime, in order to support a conviction.
    7. Same.
    A distinction between the crimes, provided for by sections 165 and 672, is that the first crime can be committed only by a public officer, while the second may be committed by a person who, in the form prescribed by law, presents for audit a false and fraudulent charge or claim against a municipal corporation.
    Appeal from demurrer to the indictment was sustained by the trial court, but the appellate division reversed the case.
    The defendant demurred to an indictment found against him by the grand jury of the county of Erie, on the ground, among others, “that more than one crime is charged in the indictment, within the meaning of sections 278, 279, of the Code of Criminal Procedure.” The trial court sustained the demurrer, and the interlocutory judgment entered thereon was reversed by the appellate division. The indictment reads as follows: “ Supreme Court, Erie County. The People of the State of New York against Frank E. Klipfel. 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 and demand 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 such county, committed as follows, to wit: That at all the times herein mentioned Frank E. Klipfel was a duly elected, qualified, and acting public officer, to wit, a supervisor of the Sixth ward of the city of Buffalo, and a member of the board of supervisors of the county of Erie, and that as such member of said board of supervisors the said Frank E. Klipfel was at all times charged with the duty, among others, of taking part in the auditing and allowing of claims and demands upon said county of Erie. .That one John W. Neff was at all of such times the duly elected, qualified, and acting county auditor of said county, and that the said board of supervisors and the said county auditor were at all of such times duly authorized to audit and allow claims and charges against said county. That on the 6th day of October, in the year of our Lord one thousand eight hundred and ninety-six, at the city of Buffalo, in the said county of Erie, the said Frank E. Klipfel feloniously did knowingly and corruptly introduce, and cause to be introduced, vote for and cau’se to be passed and adopted by said board of supervisors of said countyt at a session thereof duly and regularly called and held, a resolution directing that an order be drawn on the county treasurer of said county in favor of Henry L. Steiner, John P. Under-hill, John H. Stock, George H. Blanchard, Frank E. Klipfel, George F. Aberth, Philip Erbes, members of the committee on almshouse and county hospital of said board of supervisors ; George W. Briggs, chairman of said board of supervisors; John G. Schlotzer, keeper of the almshouse of said county; John WHeff, county auditor of said county; Edward J. Gilray, medical superintendent of the county hospital of said county,—for the necessary expenses, not to exceed seventy dollars ($70) each, theretofore incurred by the said Henry L, Steiner, John P. Underhill, John H. Stock, George H. Blanchard, Frank E. Klipfel, George F. Aberth, Philip Erbes, George W. Briggs, John G. Schlotzer, John W. Heff, and Edward J. Gilray in making an investigation pursuant to the direction of the said board of supervisors of a hospital in the city of Hew York; and the said Frank E. Klipfel, on the day and year last aforesaid, at the city of Buffalo, aforesaid, feloniously did knowingly and corruptly make and prepare and verify, under his oath then and there duly taken, and cause to be made, prepared, and verified by his said oath, and then and there feloniously did knowingly and corruptly present, and cause to be presented, for audit and allowance, to the said John W. Heff, as such county auditor, who then and there audited and allowed the same, a false and fraudulent acco mt, bill, and voucher against the county of Erie, a municipal corporation, in the words and figures following, to wit:
    
      “ 1 The County of Erie, Department of Board of Supervisors,
    to Frank E. Klipfel, Dr.
    1896. Order. Items. Price. Amount
    Oct. 6. To expenses as per relative to Hew York
    Consumptive Hospital as per resolution of
    the board............................ $70 00”?
    Tracy 0. Becker, for appellant.
    Thomas Penney, Dist. Att’y, for the People.
   PARKER, C. J. (after stating the facts).

An indictment containing but one count, and charging therein two distinct crimes, is bad for duplicity. Code Cr. Proc. §§ 278, 279. The objection not only may, but must, be taken by demurrer. People v. Tower, 135 N. Y. 457; 32 N. E. 145. The object of the statute is to contribute towards that general policy of the law that aims to apprise a person charged with crime of the exact nature of the case that the people will attempt to prove against him, to the end that he may make full preparation to meet it. The test by which to determine whether a single count in an indictment is bad for duplicity is, could the defendant under it be convicted of either one of the crimes charged therein, should the district attorney elect to waive the other? The facts alleged in a single count of an indictment may disclose the commission of more than one crime by the defendant, and yet not contravene the statute, which does not undertake to cramp the pleader in his statement of the facts, but does say to him, “Your indictment shall charge in a single count but one crime.”

The office of an indictment, under our statutes, is pointed out by this court in People v. Dumar, 106 N. Y. 502-509; 13 N. E. 325, as twofold: First, it must charge the crime of which the defendant is accused (section 254, Code Cr. Proc.); and, second, it must contain a plain and concise statement of the act constituting the crime (section 275, id.). “ The omission of either of these things would necessarily be fatal to the indictment. If there was no accusation of a crime, the paper, however formal in other respects, would not be an indictment, and so there would be no criminal action. If it contained no statement of the act constituting the crime, there would be no description of the offense, and neither an acquittal nor a conviction would enable the defendant to withstand a further prosecution for the same crime." The court, further, in support of its construction of the provisions of the Criminal Code relating to the contents of an indictment, invoked section 276, which gives the form of an indictment, and provides, first, for charging the defendant with the commission of a particular crime, and then provides for a description of the acts constituting it. The doctrine of that case was reaffirmed by this court in People v. Stark, 136 N. Y. 541; 32 N. E. 1046, and cited with approval in People v. Peckens, 153 N. Y. 586; 47 N. E. 885.

Applying the test to which we have referred to this indictment, it discloses that two crimes are not charged therein. The facts alleged describe two crimes, but, as we have seen, the defendant must also be charged with two crimes in order to render the indictment bad for duplicity. Turning to the indictment, we observe, at the very outset, that the draftsman, in compliance with the statutes, as construed in our decision in Dumar’s Case, charged the defendant with the crime of knowingly auditing and allowing, and consenting to the allowance of, a false and fraudulent claim against the county, while acting in his capacity as a public officer,—a crime declared to be a felony by section 165 of the Penal Code. Having named the crime of which the defendant was accused by the grand jury, the indictment next proceeded to describe the acts constituting the crime, and it alleged, in effect, that while the defendant was a supervisor of one of the wards in the city of Buffalo, and therefore a member of the board of supervisors of the county of Erie, and hence charged with the duty, among others, of auditing and allowing claims against the county of Erie, “ he feloniously did knowingly and corruptly introduce, and cause to be introduced, vote for and caused to be passed and adopted by said board of supervisors of said county, * * * a resolution directing that an order be drawn on the county treasurer of said county in favor of ” several persons therein named, for the necessary expenses, not to exceed $70, theretofore incurred by such persons. Had the indictment stopped there, the opportunity for this controversy would not have arisen, but it next proceeded to allege that the defendant “ feloniously did knowingly and corruptly make and prepare and verify under his oath then and there duly taken, and cause to be made, prepared, and verified by his said oath, and then and there feloniously did knowingly and corruptly present, and cause to be presented, for audit and allowance, to the said John W. Neff, as such county auditor, who then and there audited and allowed the same, a false and fraudulent account, bill, and voucher against the county of Erie.” The acts thus described constitute a felony, under section 672 of the Penal Code. A distinction between these crimes, provided for by sections 165 and 672, is that the first crime can be committed only by a public officer, while the second may be committed by any person who, in the form prescribed by law, presents for audit a false and fraudulent charge or claim against a municipal corporation. How,, while the indictment describes the commission of certain acts that constitute a crime under section 672 of the Penal Code, it does not charge that the defendant committed such a crime, as the indictment must, as we have already seen, in order to support a conviction for such a crime. And so had this demurrer not been interposed, and had the district attorney proceeded to the trial of the defendant under the indictment, and had failed to make out a case against him as charged in the first part of the indictment, by omitting to prove that he voted for the resolution, or by failing to prove some other act necessary to a conviction of the defendant for that crime, but had proved the facts alleged in the latter part of the indictment stating a crime, within section 672 of the Penal Code, and had then insisted that he was entitled to a conviction of the defendant for having violated the latter section of the Code, the court would have been obliged to deny the claim of the district attorney on the ground that, while the facts constituting that crime were stated in the indictment, the defendant was not charged therein with having committed such a crime, and hence the indictment would not support a judgment of conviction for such offense. People v. Dumar, supra. The order should be affirmed, with leave to plead given.

All concur.

Order affirmed.  