
    Supreme Court—General Term—First Department.
    
      October, 1891.
    PEOPLE v. MEAKIM.
    Motion in Abbest of Judgment—Former Acquittal— Variance.
    A defendant must be held to a position which he assumes, and upon which he requests and secures a favorable judgment or other personal advantage, subject to the limitation that consent cannot confer jurisdiction or waive the procedure required by the con-I stitution.
    
      Where, upon the trial of an accused person, a verdict of acquittal is directed upon his request, upon the ground of variance between the proof and the indictment, he will not, on the trial of a subsequent indictment for the same offence, be permitted to claim that there had been no material variance between the proof and indictment on the former trial, and that, therefore, the first acquittal was on the merits.
    Appeal by the people from an order made at the oyer and terminer April, 1891, arresting judgment on a verdict of a jury in favor of the people upon the trial of defendants Alexander Meakim, Joseph Koch, and Edward Fitzpatrick, of the plea of former acquittal interposed by the defendants to the indictment herein.
    The facts of this case are as follows:
    The defendants were indicted by the grand jury of the city and county of New York, June 19, 1890, charged with the crime of a misdemeanor, in having wilfully neglected to decide within a reasonable time the questions arising upon the complaint made before them as Commissioners of Excise of the city and county •of New York by Richard W. G-. Welling, on behalf of the City Reform Club, charging that on the 5th day of November, 1889 (Election Day), a certain saloon, situate at No. 258 Avenue A, being a place licensed for the sale of liquors, as in the said indictment alleged, and being within one quarter of a mile of a polling place where such election was being held, was open for business in violation of the law. The indictment alleges that the said complaint was presented to the said Board of Excise on the 6th day of January, and that on the 13th day of January, 1890, upon said complaint, the said Board of Excise summoned before them Henry Ahrens, the licensee of said premises ; that in pursuance of said summons the said Ahrens, on the 18th of February, 1890, appeared before the said Board of Excise ; that on that day proceedings were duly taken by the said Board of Excise, and a hearing and inquiry into the truth of the allegations and charges of said complaint and of the questions arising thereupon, was then and there had, and evidence was then and there taken and heard in due form by the said Board of Excise, touching and concerning the truth of the allegations and charges in the said complaint; and on the said last-mentioned day the said complaint and evidence and questions were then and there finally submitted to and were before the said Board of Excise for its action, determination, and decision.
    The indictment further alleges that it was the duty of the said defendants, as such Board of Excise, to act upon, determine, and decide the said complaint, and the questions arising thereupon within a reasonable space of time thereafter; and further alleges, that the said defendants, so constituting and composing the said Board of Excise “ unlawfully did wilfully neglect and omit to perform the said duty so by law enjoined upon them and each of them as aforesaid, and unlawfully did wilfully neglect and omit to act upon, determine, and decide the said complaint, and the questions arising thereupon, within a reasonable space of time after the same had been so finally submitted to, and were so before the said Board of Excise as aforesaid.”
    And further alleges: “ That they intentionally omitted to decide said complaint and the questions arising thereupon, by reason whereof the said license so granted aud issued to the said Henry Ahrens expired pending such action, determination and decision by the said Board of Excise, against the form of the statute, etc.”
    The defendants, on July 7, 1890, severally pleaded not guilty to this indictment. The issue thus raised came on for trial before the Hon. Frederick Smyth, Recorder, and a jury, in the court of general sessions, 28 April, 1891.
    It appeared upon the trial that the defendants had been appointed Commissioners of Excise on May 2,1889, and had qualified May 3, 1889.
    The people offered in evidence, as a part of their proof, an entry from the Record-book of Licenses granted by the Board of Excise of the city and county of New York, showing the issue of a license, as alleged in the indictment, on March 29,1889, to “ Henry Ahrens, 258 Avenue A, ” and expiring March 29, 1890, the said place being the premises specified in the indictment as the premises at which the alleged violations of law had taken place.
    The objection was made by the defendants to the introduction of this evidence on the ground that the allegation in the indictment as to the issue of the license for the sale of liquors at the said premises, 258 Avenue A, in reference to which the complaint set forth in the indictment was made, must be construed to allege that the said license was issued by the defendants, while the proof in evidence showed that the defendants had not been appointed Commissioners of Excise until the 3d day of May, 1889, while the evidence offered showed that the license had been issued on the 29th day of March, 1889, and was therefore issued by the Board of Excise as constituted prior to the appointment of the defendant as Commissioner of Excise. The allegations of the indictment referred to were as follows:
    “ Heretofore, to wit: On the 6th day of January, 1890, and at all the times herein mentioned, the said Alexander Meakim, Edward T. Fitzpatrick, and Joseph Koch, all late of the city and county aforesaid, were commissioners of excise of the city and county of New York, duly appointed, qualified, and acting as such, and as such commissioners of excise constituted and compose the Board of Excise of the city and county of New York.
    “ And therefore, to wit: On the 29th day of March, 1889, at the said city and county, the said Board of Ex-else duly granted and issued to one Henry Ahrens a certain license in due form of law, to sell strong and spirituous liquors, ale, wine and beer to be drank upon the premises there situate, know, as number 258 Avenue A, for and during the period of one year next ensuing, which said license was, at all the times herein mentioned, in full force and effect and in nowise annulled, rescinded, cancelled, or revoked by the said board of excise, or in any manner impaired or affected, and the said premises were a place duly licensed by the said Board of Excise for the sale of strong and spirituous liquors, ale, wine, and beer in quantities less than five gallons at a time to be drank upon the said premises.” The contention of the defendants was that, as the algation in the first paragraph above quoted was that, “ on the 6th day of January, 1889, and all the times herein mentioned, the defendants were commissioners of excise, and as such commissioners of excise constituted and composed the Board of Excise of the city and county of New York, that was an allegation that they were commissioners of excise on the 29th day of March, 1890, and that as the following allegation in the indictment was that on the 29th day of March, 1889, the license in question was duly granted and issued by the said Board of Excise, that the indictment must be construed to allege that the license in question was issued by the defendants, while the proof showed that it was not issued by them but by their predecessors ; and the objection to the admission of the evidence offered was, that it was inconsistent with the allegation in the indictment as thus construed. The court took this view. The district attorney then asked leave to amend the indictment so as to correspond with the fact as to the issue of the license by the previous board.
    The defendant objected to this amendment being made.
    
      The district attorney contended that the variance was immaterial; that it was a mere error in the description of the board; that the material point in the indictment was that the defendants had failed to act upon the complaint made before them, and that the statement of the indictment as to the time of granting this license was no part of the crime. But the court ruled that the allegation was a material allegation. The district attorney then contended that the court had power to make this amendment under the authorities to which the attention of the court was directed, and asked leave to amend the indictment to make it conform to the proof as to the issue of the license by the preceding commissioners.
    The defendants objected to the introduction of the evidence on the ground that it was inconsistent with the allegations in the indictment, and objected to the motion to amend, and contended, first, that the court had no power to amend the indictment as asked for, and that by the granting of the proposed amendments they would be prejudiced, and presented on affidavit in support of this last position. The district attorney argued as above stated, and that the defendant could not be so prejudiced, and further, that the allegation in the indictment that the license was duly issued was a sufficient notice to the defendants to disprove it if they desired to do so. The court said : “ I do not see how I can, in the face of this affidavit, grant these amendments which the district attorney proposes to make ; nor do I think it would be safe for the district attorney to amend the indictment as he proposes to do in this case, and that the safe and proper course to be adopted would be to direct the jury to acquit on the ground of variance between the proof and the indictment, that will leave the case in this position that the district attorney can again present it before the grand jury and have a proper indictment presented to this court upon which these defendants can be arraigned and tried. I think that is the safest and proper course to be adopted in this case, and that is the course I propose to adopt.” And thereupon the court directed a verdict acquitting the defendants on the ground of a variance between the proof and the indictment. The jury returned a verdict as directed..
    Thereafter, and on the 8th day of April, the said defendants were reindicted, charged with the same misdemeanor. The case was then transferred to the oyer' and terminer, and on April 29, in said court, the defendants severally interposed, to the last-mentioned indictment, a plea of former acquittal, and on said day the-issue thus raised came on for trial in said court before the Hon. Charles H. Van Brunt, and a jury, which resulted in a verdict for the people. The defendants moved in arrest of judgment, which motion was granted, and an order was entered arresting the judgment upon said verdict.
    On this trial the record in the court of general sessions and a certified copy of the stenographer’s minutes of the trial in the court of general sessions were put in evidence by the defendants.
    From the order arresting said judgment this appeal has been taken by the people.
    
      DeLancey Nicoll, district attorney ; Henry B. B. Stapler, assistant for the people, appellant.
    
      Richard S. Newcombe, A. J. Dittenhoefer, Edgar M. Johnson, and Edward Browne, for defendants, respondents.
   Barrett, J.

Upon the face of the record, the plea was properly overruled. The verdict rendered upon the trial, under the first indictment, was not on the merits. It was directed by the learned recorder, because of his opinion that there was a variance between the proof and the indictment. The verdict, as recorded, reads as follows : “ The jury, without leaving the bar, say they find the defendants not guilty on the ground of variance between the proof and the indictment.”

Upon the face of the record, therefore, the case is brought within section 340 of the Code of Criminal Procedure, which provides that, “If the defendant were formerly acquitted on the ground of a variance between the indictment and the proof ... it is not deemed an acquittal of the same offence.” This section was a substantial re-enactment of the law as it existed under the Revised Statutes (2 Revised Statutes, 701, section 24).

If the case stood upon the record alone, there would, therefore, be no difficulty with regard to the result. We would only have to follow the plain terms of the statute, as was done in Canter v. The People (1 Abb. App. Dec. 305). There the plea presented the ground of acquittal on the former trial in the very words of the Revised Statutes, namely: “ On the ground of a variance between the indictment and the proof.” Upon this the court said: “ We are, therefore, admonished by this clear and explicit declaration of the statute that an acquittal upon such ground forms no bar to a trial and conviction upon a subsequent indictment for the same offence. This plain provision of the statute law of the state disposes of the plea in bar interposed by the prisoner, and shows it was properly overruled.”

The distinction between that case and the present lies in the fact that the defendants here dispute the ground of acquittal as expressed in the record, and insist that there was no material variance between the indictment and the proof. Their contention is that the learned recorder erred in this regard, and that, consequently, they should now have the advantage of a general verdict of acquittal upon the merits.

Whether the variance referred to was or was not material, we think the defendants cannot now be permitted to question the position which they took upon that head on the former trial. The record of that trial distinctly shows that the defendants there claimed that the variance was material, that, because of its substantial character, certain evidence offered by the people tending to show that a license had been duly issued to one Ahrens was inadmissible, and that an amendment which would let in such evidence was not within the power of the court to grant. Having requested the court to rule in their favor in these particulars, and the court having thereupon directed an acquittal upon these very grounds, they cannot now be heard to say that there was no material variance, that the evidence offered should not have been excluded upon their objection, and that the people should have been permitted to proceed with their case. In other words they must, under such circumstances, take the acquittal as it was directed and recorded; and they cannot now be permitted to go behind the record as it was thus made up. As matter of fact, they were not acquitted upon the merits, and, as matter of law, their jeopardy ceased when the court held, at their request, that there was a material variance between the indictment and the proof offered.

The precise question does not seem to have been presented in any adjudged case, but the general principle is well settled that, in criminal as well as in civil cases, a defendant must be held to the position which he assumes, and upon which he requests and secures a favorable judgment or other personal advantage. This principle, of course, is subject to the limitation that consent cannot confer jurisdiction or waive the procedure required by the constitution. In illustration of this general principle Mr. Bishop says (1 Criminal Law, 7th ed., section 1000) that: “ When the indictment, is good, yet the court, supposing it not good, erroneously arrests judgment on the defendant’s application; if the prosecutor may have this judgment of arrest reversed for the error, he cannot maintain a new indictment, because his prisoner is still in jeopardy under the old one, which is liable to be revived by a reversal of the judgment of arrest. But in states where the erroneous judgment of arrest cannot be called in question, the prisoner’s jeopardy has ceased at his own request and for his own benefit; therefore he may be proceeded against anew.”

So in Gerard v. People (3 Scamm. [4 Ill.] 364), Treat, J., observed that: “In civil cases parties are never permitted to assign for error decisions of the court made at their instance, or with their consent, and we are aware of no good reason why the rule should not be applied to criminal cases, except in cases where jurisdiction is sought to be conferred upon the court by consent.”

And in King v. People (5 Hun, 300) this language was used by Boardman, J.: “ If the irregularity was not fatal to any conviction that might be had, and the prisoner yet insisted upon the defect, and objected to further proceedings upon the trial, that was equivalent to asking for the discharge of the jury and consenting thereto. The general opinion is that the consent of the prisoner to the discharge of the jury will obviate any objection founded oñ his constitutional privilege ” (see also People v. Casborus, 13 Johns. 351 ; Croft v. People, 15 Hun, 486, 487 ; Commonwealth v. Guild, 12 Gray, 171).

We think, therefore, that the plea of former acquittal was properly overruled, and that the motion in arrest should have been denied.

The other question raised upon this appeal, namely, whether the indictment states facts sufficient to constitute a crime, does not appear to have been presented upon the motion in arrest of judgment.

The sole question then before the court, so far as appears from the record, was whether the defendants had been twice put in jeopardy. We think, however, that the facts alleged in the indictment sufficiently state a crime within section 117 of the Penal Code, and that no special discussion on that head is required. We concur with Judge Mabtine in the opinion which he delivered upon overruling the demurrer interposed by the defendants to the first indictment (see also People ex rel. Welling v. Meakim, 56 Hun, 626, affirmed 123 N. Y. 660 ; People v. Jones, 54 Barb. 311 ; People v. Brooks, 1 Denio, 457).

The order appealed from should, therefore, be reversed.

Patterson, J., concurs.

Note. As to the effect of the former adjudication see People v. Sculley (3 N. Y. Crim. Rep. 344), People v. Burch (5 Id. 59, and note), People v. Peck (4 Id. 148), People v. Richards (5 Id. 355).  