
    COURT OF GENERAL SESSIONS—NEW YORK CO.,
    July, 1910.
    THE PEOPLE v. McCORMACK.
    (1) . Indictment—Demurrer—Code Grim. Pro., § 323.
    An indictment which states no facts constituting a crime is demurrable under section 323 (4) of the Code of Criminal Procedure.
    (2) . Same—Crimes Charged as Second Offense.
    Allegations relating to past offenses in an indictment for a crime charged as a second offense, if sufficient, merely compel, if proved, the infliction upon conviction of a heavier punishment and if insufficient do not permit of the introduction of evidence upon the trial to support them.
    (3) . Same.
    The power of a grand jury to find a superseding indictment where the jury disagreed upon the trial of the superseded indictment cannot be raised by demurrer.
    Demurrer to indictment.
    
      Thomas 8. Morgan, Jr., for demurrer.
    
      Charles 8. Whitman, District Attorney (James A. Delehanty, of counsel), opposed.
   Grain, J. •.

The defendant demurs to an indictment filed March 31, 1909, intended to charge him with the crime of grand larceny in the first degree as a second offense. An examination of the demurrer, in connection with sections '323 and 324 of the Code of Criminal Procedure, is necessary to determine to what extent it conforms to the requirements of the statute and what questions are presented by it for decision.

The demurrer does not follow the language of the Code and does not as distinctly specify the alleged grounds of objection to the indictment as it would have done had it followed such language. It, however, uses to the extent hereinafter stated equivalent language and to such extent it cannot be disregarded under the provisions of section 324 of the Code of Criminal Procedure.

The first alleged ground of demurrer is stated as follows, namely: “ That the allegations of facts set forth in said indictment are insufficient to constitute any crime against the laws of the State of New York.” This language is the equivalent of that contained in the fourth subdivision of section 323 ■of the Code of Criminal Procedure. That subdivision gives a defendant the right to demur to an indictment when it appears upon the face thereof that the facts stated do not constitute a crime.

The second alleged ground of demurrer is stated as follows, namely: That said indictment does not fully and fairly inform the defendant of what he will be called upon to meet in the trial of said case, and is evasive, uncertain, and does not ■conform to the requirements of the Code that an indictment shall fairly notify the defendant of what he will be accused of .at the trial.” A part of this language may be said to be the •equivalent of that contained in the second subdivision of section 323 of the Code of Criminal Procedure. That subdivision gives a defendant a right to demur to an indictment when it appears upon the face thereof that the indictment does not •conform substantially to the requirements of sections 275 and 276 of that Code; and the second clause of section 275 requires that an indictment shall contain a plain and concise statement of the act constituting the crime, without unnecessary repetition.

The third and last alleged ground of demurrer is stated as follows, namely: Because said indictment is multifarious.” Multifariousness in a pleading may arise where several matters of a distinct and independent nature against several defendants are alleged, or where in a pleading against a single defendant several matters perfectly distinct and unconnected are united. An indictment may he said to be multifarious where there is a misjoinder of crimes in violation of section 278 of the Code of Criminal Procedure.

The third alleged ground of demurrer may, therefore, be considered as the equivalent of that stated in the third subdivision of section '323, namely, that more than one crime is charged in the indictment within the meaning of sections 278 and 279 of the Code of Criminal Procedure.

The indictment attacked by this demurrer supersedes one similarly worded, save for those allegations which refer to alleged prior offenses. The superseding indictment was demurred to by a demurrer more technically correct than the present, and raising the only questions now presented. That demurrer was disallowed. Unless the added allegations in the present indictment vitiate it, the decision upon the first demurrer is now decisive against the defendant. If the questions thus decided could, with propriety, be re-examined, the same conclusion would be reached. The indictment contains two counts, each charging grand larceny in the first degree as a second offense. The first (which is the one alone assailed) purports to set forth how or by what means the crime was committed. It is attacked upon the theory that it was intended therein to allege a grand larceny by false representations and that so considered, for reasons stated in the defendant’s brief,, it is insufficient. It may be conceded that, if this premise were correct, this count would be defective. The contention fails, however, because the count in question was not designed to allege a larceny by false representations, but rather one by trick and device; and so considered it is sufficient. It probably is an unnecessary count as, under the unassailed count, which is in the common-law form, evidence could likewise be received of a larceny by trick and device. (People v. Miller, 169 N. Y. 339.)

The allegations in the indictment relating to alleged past offenses do not relate to the crime charged, but to an alleged event in the life of the defendant compelling, if found upon the trial to have occurred, the infliction of a heavier penalty. (People v. Raymond, 96 N. Y. 39; People v. Sickles, 156 id. 541.) They are properly in the indictment, not because of an express statutory requirement in that regard, but in obedience to the principle recognized and acted upon in People v. Price, 6 N. Y. Crim. 141, and Matter of Kenny, 23 Misc. Rep. 9, 13, and cases there cited. If, for any reason, they insufficiently allege such prior offenses—a matter argued but not passed upon—the only effect will be to exclude evidence of the same upon a trial.

It is urged on the argument that the indictment was improperly found because, after the disallowance of the demurrer to the indictment superseded, the defendant pleaded not guilty and went to trial and his case was submitted to a jury, who disagreed. There appears to be no legal obstacle to the finding by a grand jury of a superseding indictment under such circumstances (see Code Crim. Pro., § 292a), and the question as to the power of the grand jury in this respect cannot be raised by demurrer.

Demurrer disallowed.  