
    The People of the State of New York, Plaintiff, v. John Welz, Defendant.
    (Supreme Court, Queens Trial Term,
    April, 1910.)
    
    Grand jury — Presence of Deputy Attorney-General.
    Indictment — Finding and filing and formal requisites — Interference or presence of prosecuting attorney in deliberations of grand jury. States — Governmental functions — Powers of officers — Attorney-General.
    Although the Governor properly required the Attorney-General to manage and conduct in person or by one of his deputies any proceedings before the grand jury of Queens county relating to any criminal charge arising, growing out of or based upon "any purchase o-f land by the city for Kissena park, where the grand jury, under the management and conduct of the Deputy Attorney-General, found an indictment signed by the Attorney-General under section 810 of the Penal Law and the indictment contains no allegation in words or by fair legal inference that the defendant was in any way connected with the purchase of land for Kissena park or had undertaken to do any act which could be construed as an act arising, growing out of or based upon the purchase of the land, such an indictment is without the scope of the investigation and should be set aside.
    Motion to set aside an indictment.
    Ezra P. Prentice, Jacob Frank and Henry R. Ketcham, Deputy Attorneys-General, and Frederick G. De Witt, district attorney of county of Queens, for People.
    Thomas F. Magner, John F. Carew and William Rasquin, Jr., for defendant.
    
      
      Received too late for insertion in proper place.—[Rep.
    
   Clark, J.

Acting under the authority conferred upon him by the Laws- of 1892, chapter 68'3, section 52, as ■amended by the Laws of 1895, chapter 821, section 2, now appearing as section 62, subdivision 2, of the Executive Law, the Governor of the State of New York required the Attorney-General to manage and -conduct, in person or by one of his deputies, any criminal actions or proceedings which might be taken before the grand jury of Queens county relating to any criminal charge arising, growing out of or based upon any purchase of land by the city for Kissena park. By the law under which such requirement was issued by the Governor the duties and powers of the Attorney-General are limited to such actions or proceedings “ as shall be specified in such requirement.” In order to fulfill the requirement of the Governor the Attorney-General appointed one Nathan Yidaver as Deputy Attorney-General to manage and -conduct the matters above specified. Both the requirement of the Governor and the appointment by the Attorney-General are, with respect to the purposes of the inquiry and to the powers conferred, expressed in the same phraseology.

Nathan Yidaver appeared before the grand jury of Queens county, under su-oh -appointment, and there duly conducted an examination; in the course -of which the defendant, -being called as a witness, offered in evidence a document which is 'charged in the indictment as having been to the knowledge of the -defendant fraudulently altered. After the giving of such testimony the grand jury, under the management and conduct of the Deputy Attorney-General, found this indictment, signed by the Attorney-General, against the defendant, under section 810 of the Penal Law. There is no question that the Governor had the right to require the investigation in .question, subject to the statutory limitation of the investigation by the Attorney-General to such matters as should he specified in such requirement, nor that the Attorney-General duly deputized Nathan Yidaver, within such limitations, to manage and conduct such investigation.

■ The question, therefore, arises whether the investigation and indictment were respectively made and found within the scope of the requirement of the Governor. There is no allegation in the indictment, in words or by fair legal inference, that the defendant was in any way connected with the purchase of land for Kissena park, or that, before the consummation of the said purchase, he had directly or indirectly undertaken- to do any act which could be construed as an -act arising, growing out of or based upon the purchase of the land. In the absence of any such allegation the offer for which the defendant was indicted stands disconnected from any other acts arising out of the purchase which might form the basis of a criminal charge. The act of the defendant was at most collateral. It was without the scope of the investigation, not being within its expressed or legally infer-able purposes.

Had there appeared in the indictment any intimation of a preconceived purpose on the part of the defendant, before the consummation of the purchase, to do any of the acts, with the commission of which he now stands charged, a different conclusion might have been reached.

The indictment is set aside.  