
    (76 Misc. Rep. 577.)
    PEOPLE v. ELITE DISTRIBUTING CO. et al.
    (Ulster County Court.
    May, 1912.)
    1. Criminal Law (§ 627%*)—Minutes—Inspection.
    Where the affidavit on motion for inspection of the minutes of the grand jury simply resolves itself into a statement of defendant that he does not know how the witnesses before the grand jury could have any knowledge upon the subject, and that therefore there was no evidence justifying the finding of an indictment, the motion will be denied.
    [Ed. Note.—For other cases, see Criminal Law, Gent. Dig. §§ 1431, 1434, 1435; Dec. Dig. § 627y2.*]
    2. Criminal Law (§ 42*)—Examination of Witnesses—Privilege of Witness.
    Where defendant was indicted for grand larceny in the second degree, arising out of the same transaction which resulted in a previous indictment against two others, in which case he had been subpoenaed as a witness before the grand jury, and it does not appear that defendant’s testimony before the first grand jury was used before the one which indicted him, or that any of his constitutional rights were violated, his motion to dismiss the indictment on the ground that he had gained immunity must be denied.
    
      ♦For other cases see same topic & 8 OTTMBer in Dec. & Am. Digs. 1907 to date, & Bep’r Indexes
    
      [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 45-48; Dec. Dig. § 42.*]
    3. False Pretenses (§ 29*)—Indictment—Sufficiency.
    Where an indictment for obtaining money by the use of a false writing set forth the writing in full, the fact that it did not charge in detail how the fraud was committed did not vitiate it.
    [Ed. Note.—For other cases, see False Pretenses, Cent. Dig. §§ 34r-36; Dec. Dig. § 29,*]
    4. False Pretenses (§ 31*)—Indictment—Sufficiency.
    An allegation in an indictment that by color and aid of a "false writing property was feloniously taken is the equivalent of an allegation of reliance upon the writing.
    [Ed. Note.—For other cases, see False Pretenses, Cent. Dig. §§ 38-41; Dec. Dig. § 31.*]
    5. False Pretenses (§ 26*)—Indictment—Sufficiency.
    An indictment for obtaining property by the use of a false certificate that at a given depository one of the defendants had in bond five barrels of whisky, which alleged that the writing was in all respects utterly false and untrue, to defendants’ knowledge, and specifically charged two pretenses as being false, is sufficient, though the date of the false writing is a year earlier than its use; the charge being that the writing was false when used in obtaining the property.
    [Ed. Note.—For other cases, see False Pretenses, Cent. Dig. § 31: Dec. Dig. § 26.*]
    •For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    The Elite Distributing Company and another were indicted for obtaining property by false pretenses. Motion to inspect minutes of grand jury, and motion to dismiss the indictment on the ground that defendant Webber had gained immunity, denied. Demurrer to indictment overruled.
    William D. Cunningham, Dist. Atty., for the People.
    Brinnier & Canfield (G. D. B. Hasbrouck, of counsel), for defendants.
   CANTINE, J.

The questions presented will be considered in the order above stated.

First. The defendants herein have moved upon an affidavit of Samuel W. Webber for leave to inspect the minutes of the grand jury* The affidavit shows the finding of an indictment for the obtaining of certain property by means of false pretenses, viz.: The use of a certificate which recited that at a given distillery in Kentucky the Elite Distributing Company had, in bond, five barrels of whisky. The names of the witnesses indorsed upon the indictment are then given, and the defendant alleges that none of the witnesses named could by any possibility have had personal knowledge upon the subject whether the whisky was in bond as stated in the affidavit, or not; that the only persons who could have such knowledge were the owners and employés of the distillery, and no one of them was sworn.

There is no affidavit, however, presented on the part of the owners or employés of the distillery upon this subject. The defendant Webber could by no possibility know what knowledge his former employés had upon that subject. They might well have had personal knowledge of the facts that he knew not of, or, by reason of their position as former employés of the defendant, they might have had access to the records of the defendants, and thereby gained knowledge which the defendant denies they have, or the defendants may have made admissions or statements showing the falsity of the facts stated in the certificate. The affidavit plainly resolves itself into a statement upon the part of the defendant that he does not know how the witnesses sworn before thé grand jury could have any knowledge upon the subject under consideration, and that, therefore, there was no evidence ■before the grand jury justifying the finding of an indictment.

Mr. Justice Kenefick, in the case of People v. Steinhardt, 47 Misc. Rep. 252, 93 N. Y. Supp. 1026, has very fully examined the subject ■now under discussion. With his views I fully concur. The moving papers are not sufficient to justify the inspection asked for. The motion is therefore denied.

Second. Involved in a measure in the above motion is the application upon the part of the defendant Samuel W. Webber to have the indictment dismissed against him, upon the ground that he was compelled by subpoena to testify before a grand jury which was considering the general subject-matter in part, involved in this indictment. In other words, the defendant desires by a plea of immunity to have this indictment dismissed as to him. The facts are not disputed in the moving papers. From them it appears that in the month of October, 1911, the grand jury of this county were examining a charge of grand larceny in the second degree against Frank Kiss and Samuel Graubart, who, representing themselves as the agents of the Elite Distributing Company, by means of a false token and writing, viz., a certificate that the Elite Distributing Company had in bond, in a certain United States warehouse in the Fifth district of Kentucky, five barrels of whisky, and by said representations and the use of the said certificate, obtained from E. Edward McClure, of the city of Kingston, the sum of $125. During the examination of that case Samuel W. Webber was subpoenaed and sworn as a witness. This grand jury found an indictment for grand larceny in the second degree against Kiss and Graubart. Subsequently, in the month of December, 1911, another grand jury examined a charge against the Elite Distributing Company and Samuel W. Webber of grand larceny in the second degree, arising out of the same transaction for which Kiss and Graubart had been indicted by the October grand jury.

There is no statement in any of the moving papers that the testimony of Samuel W. Webber taken before the October grand jury was in any way used before the December grand jury. The decision of this motion is therefore governed by the following cases: People v. Haines (Gen. Sess.) 1 N. Y. Supp. 55; People v. Singer, 18 Abb. N. C. 96; People v. Cahill, 193 N. Y. 232, 86 N. E. 39, 20 L. R A. (N. S.) 1084. Immunity is purely a creature of statute. There is nothing in the moving papers to show that any constitutional right of the defendants was violated by the December grand jury.

The motion to dismiss the indictment is denied.

Third. A demurrer has also been interposed upon the several grounds named in the Code of Criminal Procedure. This indictment is to be tested by the rules governing pleadings in the obtaining of property by means of false pretenses. The intent to defraud and the felonious taking are very fully alleged. The false writing, by the use of which it is charged the felony was committed, is set forth in full; but the indictment does not charge in detail how the fraud was committed by the use of this writing. These facts are the subject of proof and not pleading. People v. Eaton, 122 App. Div. 706, 107 N. Y. Supp. 849.

“The averment of the pretenses by the indictment are only to give the defendant notice of what may be proved against him; the mode of obtaining need not be pleaded; and, if any pretense is capable of defrauding, that is sufficient.” Thomas v. People, 34 N. Y. 351.

The indictment, also, does not charge reliance upon the writing. The equivalent is charged in the statement that, by color and aid of the false writing, the property was feloniously taken. Clark v. People, 2 Lans. 329; People v. Sattlekau, 120 App. Div. 42, 104 N. Y. Supp. 805.

The denials of truth are sufficient. They are generally charged as being in all respects utterly false and untrue, to the defendants’ knowledge, and two pretenses are specifically charged as being false. It is true that the date of the false writing is a year earlier than its use. The charge, however, is that the writing was false when it was used in obtaining the property. The date of the writing is therefore of little importance in considering the demurrer. The indictment must be considered as a whole, and from it the defendants are fairly apprised of the charge, viz., that, upon the 23d of July, 1911, with intent to defraud, etc., by means of a false writing which is set forth, the defendants feloniously obtained from E. Edward McClure the sum of $125, and that the principal fact stated in said false writing, viz., the possession of five barrels of whisky at the time the money was obtained, was to the defendant’s knowledge false.

Upon this general subject of the sufficiency of the indictment, counsel are referred to People v. Helmer, 154 N. Y. 600, 49 N. E. 249, and Code Crim. Pro. §§ 284, 285.

Demurrer overruled.  