
    COURT OF SESSIONS.
    The People agt. James J. Wise.
    
      Indictment must show on its face a criminal offense — Election law — Penal Code, section 94— Offense under—Penal Code, section 649— What cases it covers — Bepugnancy a fatal olyeciion to an indictment.
    
    The provisions of the Code of (Criminal Procedure relating to indictments should be construed with the common law principles of pleading, and where no provision is made by the Code, the common law rule should prevail.
    The Code has not changed the common law rule that an indictment must show on its face a criminal offense.
    Under the general election laws the return of the results of an election to be given to or filed with the supervisor of the town or ward in which the election was held, must he the original return and not a mere certified copy.
    Accordingly, where it appeared on the face of an indictment that a copy of a return was given to and filed with the supervisor of a ward, and that it was mutilated by him, no offense is shown under section 94 of the Penal Code, as it was not filed or deposited with him “by authority of law.”
    To constitute an offense against a statute for the protection of a document or paper of any kind, it must appear to be the kind of document or paper specified in the statute.
    Section 649 of the Penal Code covers only cases of a messenger appointed by authority of law, or any person who interferes with such messenger.
    Repugnancy (there being two inconsistent allegations in one pleading) is a fatal objection to an indictment since, as before the Code of Criminal Procedure.
    Cases stated as to how and when the words and figures of a document or paper should be set forth in an indictment.
    
      Albany county, June, 1885.
    
      Before Hon. John C. Nott, county judge, and associates.
    
    The defendant filed a demurrer to the indictment found against the defendant. The indictment is as follows:
    The grand jury of the county of Albany, by this indictment, accuse James J. Wise of the crime of willfully and unlawfully, feloniously injuring and mutilating a document and paper filed with a public officer by authority of law, in violation of section 94 of chapter 676 of the Laws of the state of New York, passed July 26, 1881, entitled “an act to establish a penal code,” committed as follows: The said James «1. Wise, on the 7tb day of November, 1884, at the city of Albany, in this county, was a public officer of the state of New York, to wit: was the supervisor of the Twelfth ward of the city of Albany, in the county of Albany, in said state of New York, and had therefore duly qualified, and was then and there acting in the discharge of the duties of such supervisor and public officer, and while he, the said J ames J. Wise, was so acting as aforesaid, he did then and there have in his possession and custody a certain paper document instrument and writing which he, the said James J. Wise, as such supervisor, had theretofore duly received from the inspectors of the western election district of the said Twelfth ward of the said city of Albany, the same purporting to be and being the statement of the canvass of the votes cast at an election held in the said western election district of the said ward, on the 4th day of November, 1884, in the said city of Albany, and which said paper document instrument and writing, so described as aforesaid, was theretofore duly delivered to and filed and deposited with him, the said James J. Wise, as such supervisor and public officer, by authority of law, by the said inspectors of election, and was, in the words and figures and in substance following to wit:
    “CERTIFICATE OF CANVASS.
    “ Statement of result of a general election held in and for the western election district of the Twelfth ward of the city of Albany, held November 4, 1884.
    (Then follows the vote in detail, concluding with two certificates as follows):
    “ We certify that the foregoing statement is correct in all respects.” (Dated and signed by inspectors.)
    
      “We certify that the foregoing is a true copy of the original statement for the board of county canvassers.
    “Dated this 4th day of November, 1884.” (Signed by the inspectors.)
    And the said James J. Wise, on the said 7th day of November, 1884, of the city and county aforesaid, did unlawfully, fraudulently, deceitfully and ■'■'eloniously injure, mutilate, obliterate and alter, and did willfully, unlawfully, fraudulently, deceitfully and feloniously cause to be injured, mutilated, obliterated and altered, the said insrtument, writing, document, paper and statement so described as aforesaid, and did willfully and unlawfully aid and assist in the injuring, mutilating, obliterating and altering of the same by falsely making, forging and willingly acting and assisting in the false making and forging on the eighteenth line of the third page thereof, the words four hundred and ninety-nine and the figures 499 ; and on the nine teenth line of the said third page thereof, the words two hundred and twenty-nine and the figures 229; and on the fourth line of the fourth page thereof, the words six hundred and seven and the figures 607; and on the fifth line of the said fourth page thereof, the words one hundred and eighteen and the figures 118, and did falsely, fraudulently, unlawfully and willfully mutilate, obliterate and destroy, on the said eighteenth and nineteenth lines of the said third page thereof, the words four hundred and fifty-nine and the words two hundred and sixty-nine, and the figures 459 and the figures 269, and did alter and change the same willfully and unlawfully, and did willfully and unlawfully substitute in lieu thereof respectively the words four hundred and ninety-nine and the figures 499 on the said eighteenth line, and the words two .hundred and twenty-nine and the figures “ 229 ” on the said nineteenth line thereof, and did fraudulently, unlawfully and willfully mutilate, obliterate and destroy on the said fourth and fifth lines of the said fourth page thereof, the words five hundred and forty-four and the words one hundred and eighty-one and the figures 544 and the figures 181, and did then and there change and alter the same and did cause the same to be changed and altered, and did then and there willfully and unlawfully substitute and cause to be substituted instead and in lieu thereof respectively the words six hundred and seven and one hundred and eighteen, and the figures 607 and 118 respectively, and did then and there aid, abet and assist in the willful and unlawful mutilation, obliteration, concealment and destruction of the words and figures so described as aforesaid, and the false and fraudulent altering and changing of the same, and the willful and unlawful substitution instead and in lieu thereof of the words and figures so described as aforesaid, with the intent to defraud.
    
      Second. And the grand jury aforesaid, by this indictment, accuse James J. Wise of the crime of willfully and feloniously mutilating and defacing, obliterating and destroying a certificate of a statement relating to the result of an election, in violation of section 649 of chapter 676 of the Laws of the state of Hew York, passed July 26, 1881, entitled an act to establish a penal code, committed as follows: The said
    James J. Wise, on the 7th day of Hovember, 1884, at the city of Albany, in this county, did have in his possession a certain instrument, writing, document and paper commonly called and known as a certificate of canvass, the same being then and there and purporting to be the certificate of a statement relating to the result of an election, duly made and signed by the inspectors of election of the twelfth ward, western district of the said city of Albany, and which said election was had and held in the said western district of the said twelfth ward of the said city of Albany, for the said district, ward and city and for the said county of Albany and state of Hew York, on the 4th day of Hovember, 1884, and at which said election there was to be elected a county treasurer and a coroner, and for which said offices there were candidates voted and balloted for, and the said certificate of canvass contained and purported to contain a true statement of the ballots and votes cast for each candidate for said offices, and was in the words and figures and substance following, to wit: (Same as in first count.)
    And he the said James J. Wise, so as aforesaid having the said certificate of canvass and statement so described as aforesaid in his possession, and did then and there willfully, unlawfully and feloniously mutilate, tear, deface, obliterate and destroy the same and especially did willfully mutilate, tear, deface, obliterate and destroy, and did willfully cause to be mutilated, torn, defaced, obliterated and destroyed, and did willfully, and unlawfully, and feloniously aid, abet and assist in the mutilation, tearing, defacing, obliteration and destruction of the eighteenth and nineteenth lines of the third sheet and the fourth and fifth lines of the fourth sheet thereof by falsely, fraudulently, willfully and feloniously, erasing, obliterating, changing, altering, destroying and defacing in the lines aforesaid, and on the sheets aforesaid the words and figures thereon placed, and substituting in lieu and instead thereof unlawfully and willfully other words and figures of a different import and conveying a different meaning, and did willfully cause the same to be erased and mutilated, obliterated, defaced, changed, altered and destroyed, and the said substitution to be so made as aforesaid, and did willingly, feloniously and willfully, aid, abet and assist the erasing, mutilating, obliterating, defacing, changing, altering and destroying the said words and figures on the lines and sheets aforesaid, and did willingly, feloniously and willfully, aid, abet and assist in the substituting therefor the other words and figures of a different import as aforesaid as to the relative number of ballots and votes respectively cast for the candidate for the offices aforesaid described and referred to said certificate of canvass.”
    
      Edward J. Meegan, for defendant.
    
      D. Cady Herrick, district attorney, for the people.
   Nott, Co. J.

The indictment contains two counts predicated on sections 94 and 649 of the Penal Code, respectively. To the indictment and severally to each count the defendant demurs, and specifies grounds.authorized by section 323 (subs. 4 and 5) of the Code of Criminal Procedure. The points made to sustain the demurrer are briefly these:

First. That the indictment should set forth, and also purport to do so, the election returns alleged to be forged and destroyed, and that the words of the indictment, and was in the words and figures and in substance following, to wit,” are insufficient.

Second. That the first count is defective because there was authority of law for the defendant as supervisor to receive the original returns only from the inspectors, whereas the paper set forth in the indictment is merely a certified copy of the original.

Third. The second count is not brought within the language of section 549 of the Penal Code, and is void for repugnancy.

The district attorney answers these points by claiming that the arguments to sustain them are mere legal refinements and are inconsistent with the provisions of the Code of Criminal Procedure.

Independent of the recent authority of the People agt. Isaacs (1 N. Y. Crim. R., 148), which enforces the common law rule of pleading in reference to explaining an ambiguous expression by an innuendo, and sustaining a demurrer to an indictment for libel for its absence., I should be disinclined to hold that it was the intention of the legislature in enacting the Criminal Code to prohibit courts from looking at and applying well-settled rules of the common law to present criminal pleadings and practice, and substitute a practically undefined system necessarily so from the absence of precedents, involving us in doubt and uncertainty for the plain and logical rules of the common law. When the Code directly or indirectly makes any provision, it must prevail; but if it is silent, good sense requires we should take our learning and rules from decisions of the courts.

The Code of Civil Procedure, adopted in 1848, was fully as sweeping as the recent Code of Criminal Procedure; and in construing it the courts hold, in this language: “ The legislature, in adopting the Code of Procedure, intended to preserve as many of the rules of the common law as are consistent with the new form of pleading” (Knowles agt. Gee, 8 Barb., 300; Boyce agt. Brown, 7 id., 80 ; Howard agt. Tiffany, 3 Sandf., 695 ; Wooden agt. Waffle, 6 How. Pr., 145).

Under the Code of Criminal Procedure, an indictment must contain a plain and concise statement of the act constituting the crime, without unnecessary repetition ” (sec. 275); and words used in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning (sec. 282); and, also, words used in a statute to define a crime need not be strictly pursued in an indictment, but other words conveying the same meaning may be used (See. 283). By sections 289, 290 and 291, special rules are provided for certain contingencies in cases of forgery and perjury. An indictment is declared to be sufficient if the act or omission charged as the crime is plainly and concisely set forth, and is stated with such a degree of certainty as to enable the court to pronounce a judgment upon a conviction according to the right of the case (Sec. 284). I take it that these provisions of the Code require that an indictment should show upon its face a criminal offense, and should do so with reasonable certainty; otherwise the section of the Code providing for a demurrer would be meaningless, for section 323 provides, as a good ground of demurrer, that the facts stated do not constitute a crime.”

If on an examination of the indictment I find that no offense is charged by it, and with reasonable certainty, it will be the duty of the court to sustain the demurrer. If, on the contrary, the indictment fairly construed in the light of the Code provisions and the rules of common law so far as applicable, sufficiently charges a crime or crimes, the demurrer must be overruled. I do not think that judges should be over-nice in looking for loop-holes to set aside indictments, but if fundamental principles are violated there should be no hesitation in doing so.

Does the first count charge a criminal offense ? The intention of the pleader evidently is, and as it is expressed in the count, to make out a case under section 94 of the Penal Code; that section enacts, “ a person who willfully and unlawfully removes, mutilates, destroys, conceals or obliterates a record, map, book, paper, document or other thing filed or deposited in a public office, or with any public officer, by authority of law, is punishable,” &c. This count, in brief, charges a mutilation by the defendant of a return of the western election district of the twelfth ward of the city of Albany, filed with him as supervisor of that ward, and sets forth a copy of the return, which it avers was filed with him, and at the end and as a part thereof has a certificate in these words: “We certify that the foregoing is a true copy of the original statement made by us for the board of county canvassers. Dated this 4tli day of November, 1884,” and signed by three inspectors of election.

In order to bring a case within this section of the Penal Code, it must appear that the instrument mutilated was filed or deposited with the defendant as a public officer by authority of law, unless therefore the return filed with the defendant was the one the law required him to receive, any mutilation thereof is not within this section. The section does not denounce the mutilation of every paper, but only where the paper is filed or deposited “ by authority of law.” In the State agt. Farrard (3 Hals., 333) it appears that a statute existed punishing as a crifiie to “ willfully, unlawfully and maliciously tear, cut, burn, or in any other way whatever destroy any transfer or an assurance of money stocks, goods, chattels or other property whatsoever.” Farrard having tore an instrument which acknowledged the receipt of certain rye to be sown on shares, it was held, first, it was not an instrument within the statute and hence no crime was committed, and, secondly, that the instrument set out in the indictment must appear to be papers of which the crime can be. committed. In Ayers agt. Covill (18 Barb., 263) it was held that under the statute for stealing a record, etc., if the paper was wholly unauthorized and void it was not within the statute; that the instrument must be the one prescribed by the statute in order to make a crime (See Rex agt. Morton, 12 Cox's Crim. Cases, 456.) The elementary writers are equally explicit. When the statute makes a forgery of a particular kind indictable, the indictment must show it to be such, and a variance is fatal” (2 Whart. Crim. Law, sec. 1467 and cases). Though an allegation cover the statute, still if it contains also allegations which shows the acts are not within the statute, it will be insufficient (Bish. Stat. Crimes [2d ed.], sec. 621.)

The same author says the act forbidden by a statute must be fully done in all its parts, else the offense is not complete (Bish. on Stat. Crimes, sec. 225). In Fadner agt. The People (2 N. Y. Crim. Rep., 553) the defendant was indicted for the forgery of a certificate of a county clerk to an alleged copy of a decree of divorce; the certificate was not in the form prescribed by the Code, and it was held to be void, and therefore did not furnish the basis for an indictment for forgery (3 Fields' Lawyers' Briefs, sec. 538 ; 2 Bish. Crim. Law, [7th ed.], sec. 533 ; 1 Whart. Prac. and Pleadings [4th ed.], pp. 271, 281 ; Vincent agt. The People, 5 Park., 100).

An examination of the statutes prescribing the duties of inspectors of election and of supervisors, as affecting election returns, must now be made, that we may determine the kind of return that should have been filed or deposited with the defendant.

The duties imposed upon inspectors of election m relation to canvass and returns are as follows :

(1.) The canvass shall be completed by ascertaining how many ballots, etc. (1 R. S. [7th ed.), 389, sec. 42). (2.) A separate canvass shall be made of presidential and vice-presidential ballots (Id., sec. 43). (3.) The statement to be made by inspectors of the result of the election shall contain a caption stating the day on which, the number of the district, the town or ward and the county at which the election was held, in relation to which such statement shall be made. Also, showing the whole number of ballots taken for each person, designating the office for which they are given, and at the end thereof a certificate that such a statement is correct in all respects, which certificate shall be subscribed by the inspectors (Id., sec. 44). (4.) “ A true copy ” of the several statements made by the inspectors shall be made and certified by them and immediately filed by them in the office of the clerk of the town or city (Id., sec. 45). (5.) The original statement, duly verified, shall be delivered by the inspectors, or by or.e of them, to be deputed for that purpose, to the supervisor of the town or ward within twenty-four hours after the same shall have been subscribed (Id., sec. 45). In addition to the foregoing a duplicate return is to be filed in the county clerk’s office (Laws of 1880, chap. 56, sec. 14, p. 158). To summarize, the inspectors must (1), as a body, or by one deputed for that purpose, deliver the original statement, duly certified, to the supervisor of the ward; (2) file a true copy of the statement, duly certified by them, in the town or city clerk’s office; (3) file a duplicate return in the county clerk’s office.

Referring to the duties of supervisors in reference to election returns, the statute is clear and distinct, requiring the original statement or return to be delivered to the supervisor, and in no case does it contemplate or authorize him to receive a copy thereof (1 R. S. [7th ed.], 390, 391, 392, secs. 1, 5, 6, 12, 16 and 17). The statutes recognize "four several different forms of returns: First. An original to be given to the supervisor. Second. A true copy to be filed in the town or city clerk’s office. Third. A certified copy to be obtained by the county clerk when the county canvass cannot proceed for lack of returns. Fourth. A duplicate under the act of 1880, to be filed in the county clerk’s office.

It appears on the face of the indictment that the return charged to be mutilated was not an orginal return, but a certified copy thereof. A copy could not take the place of the original, so far as the supervisor was concerned. As the paper set forth in the first count was not such an one as the defendant, as supervisor, should have filed, as deposited with him by authority of law,” the first count cannot consistently, with the common-law rules of pleading, or under the provisions of the Code, be sustained, and the demurrer to this count must therefore be allowed.

The second count proceeds under section 649 of the Penal Code, which provides: A messenger appointed by authority of law to receive and carry a report, certificate or certified copy of any statement relating to the result of any election, who willfully mutilates, tears, defaces, obliterates or destroys the same, or does any other act which prevents the delivery of it as required by law; and a person who takes away from such messenger any such report, certificate or certified copy, with intent to prevent its delivery, or who willfully does any injury or other act in this section specified, is punishable,” etc. This section is evidently leveled against two classes of persons: first, a messenger appointed by authority of law; second, any person who interferes with such messenger.

It is modeled on 1 Revised Statutes (6th ed.), page 449, section 8, which was directed against misconduct of messenger or those who interfere with them. The words or who willfully does any injury or other act in this section,” do not enlarge the scope of the section, or affect any person except one who interferes with a messenger. This becomes plain when we recall that section 94 of the Penal Code makes provision for all cases of injury to returns, whether copies or originals, as they must be file'1 and deposited in a public office or with a public officer, and it would be unreasonable to so construe section 649 as to make a double crime of one act. The law forbids that statutes are to be so construed as to multiply crimes or felonies. (Bish. St. Cr. [2d ed.], sec. 218; Com. agt. Macomber, 3 Mass., 439; Com. agt. Keniston, 5 Pick., 420.) The necessity for section 649 becomes apparent when it is remembered that section 94 does not cover the case of a messenger, who may not in certain cases be a public officer, but may be a mere servant or employe of a public officer.

This count fails to allege (1) that the defendant was a supervisor, or (2) that he was a messenger, or (3) that he took the certificate from a messenger, or (4) that the certificate was to have been used for any legal purpose, or that such use was prevented; and, therefore, it appears on the face of this count, in the language of the Code, “ that the facts stated do not constitute a crime ” (Code of Crim. Pro., sec. 323).

It was a well settled rule of common-law pleading, that when the words of a document are essential ingredients of an offense, as in forgery, passing counterfeit money, selling lottery tickets, sending threatening letters, libel (Whar. Cr. Pl. and Pr. [8th ed.], sec. 167), or a challenge to fight, or for printing, publishing or distributing obscene papers (Com. agt. Tarbox, 1 Cush., 66; 66 n), the document should be set out in words and figures, and the indictment must profess to set out the paper (Com. agt. Wright, 1 Cush., 62; 2 Field's Lawyers' Briefs, sec. 348; 3 id., sec. 543); and the words “in substance” was not complying with the rule (Com. agt. Wright, supra), nor was “ purport ” sufficient (1 Whart. Pr. and Pl. [4th ed.], 264), and the words “ to the tenor following,” or “ as follows ” were the proper words to use (1 Whart. Pr. and Pl., supra). If it was intended by the legislature to abolish these rules, it seems strange that special provision should be made in the Criminal Code for pleading in eases of libel (sec. 289), loss or destruction of papers in cases of forgery (sec. 290) and in perjury (Sec. 291).

It seems to me that the safer rule in all these cases not expressly provided for in the Code, is to follow the mandates of the common law pleading. If these rules prevail, both counts of the indictment would fail.

The defendant claims that the second count is bad on its face for repugnancy, which is defined to be “ two inconsistent allegations in one pleading ” (1 Bish. on Crim. Pr., sec. 489), and the argument is that as both allegations cannot be true, and there is no means of ascertaining which is meant, the whole will be as though neither existed, leaving the indictment inadequate. (1 Bish. Crim. Pr., supra). I am of opinion this rule is still in force. The Code commands the crime to be stated in the indictment plainly and concisely, and without unnecessary repetition (sec. 275), and if there be inconsistent and incongruous allegations in a count, the crime cannot be said to be stated plainly or at all.

The defendant’s argument is that the charging part of the indictment alleges a tampering with a certificate of a statement relating to the result of an election, and afterwards sets forth a mere copy of a statement.

In Roberts agt. State, an indictment for forgery alleged the purport of the forged instrument to be a “check for money on the City Bank of Dallas,” and also set out the instrument Jmo verba, thereby showing it to be a check on a ' “ city bank ” without designation of place. It was held bad (2 Texas Court of Appeals, 4 ; State agt. Bean, 19 Vt., 539 ; Heard's Cr. Pl., 130; Downey agt. State, 4 Mo., 572).

This count was drawn on the theory that there was no discrimination in the form of returns; but there is a marked difference, and if the rules of the common law were to be applied, this count falls within the rule.

In determining this demurrer we are confined to what appears on the face of the indictment. We cannot look beyond it, nor inquire as to proof, or what testimony might be offered. No authority is given the court to wander from the record before it, and it is upon the record, unaided by extrinsic matter, the questions raised must be decided. In allowing the demurrer, as the court feels bound to do, it is proper to say that the district attorney is no way responsible for this result. It is not his duty to make the returns of election officers. When criminal offenses are charged to have been committed, he must take the papers as they are, and the responsibility for errors committed must be upon the parties who are by law required to prepare the returns.

An order will be entered allowing the demurrer.  