Summary
In People v. Kane (43 App. Div. 472; affd., 161 N.Y. 380) the court said: "The offense, however, must be stated, and to accomplish that end nothing is to be taken by way of intendment, as the presumption is that every man obeys the law; and when a given act is attacked, it rests upon the asserting party to distinctly negative the affirmative condition created by the presumption."
Summary of this case from People v. CooperOpinion
October Term, 1899.
Hiram R. Steele, District Attorney, for the appellant.
Robert H. Elder, for the respondent.
The learned judge below has so carefully examined the indictment which is the subject of this appeal that our labor is much reduced in disposing of the questions raised. We agree in the disposition of the case which has been had, and in the main with the reasons assigned in the convincing opinion which accompanied the judgment. The principles which must govern in the construction of this indictment are fairly well supported by authority, and are more or less familiar. The indictment is framed upon section 1551 of the Greater New York charter (Laws of 1897, chap. 378), which is as follows:
The following is the opinion written in the court below:
JENKS, J.:
The stress of counsel in argument and in brief is upon the alleged duplicity, and, therefore, I shall consider, first, the grounds of the objection, that three separate and distinct crimes, namely, violation of law, evasion of law, and fraud, are charged in the single count of this indictment.
The fact that the statute is expressed in disjunctives, while the indictment employs conjunctives — violating and evading and committing a fraud — is not fatal. Aside from the grave question whether a statutory misdemeanor can be charged in the disjunctive, it is clear that a charge in the form followed is well made. The pleader may allege all breaches in a single count, employing "and" where the statute reads "or," and there is no duplicity, and the crime will be established upon proof of any one of the infractions. (1 Bish. New Cr. Proc. §§ 434, 586; Whart. Cr. Pl. Pr. § 228; Bork v. People, 91 N.Y. 5; People v. Davis, 56 id. 95; People v. Wicks, 11 App. Div. 539; People v. Smith, 5 N.Y. Supp. 22.)
It is of no moment that the provisions of law, violated or evaded, are contained in different sections of the charter. The charter is one statute, namely, chapter 378 of the Laws of 1897, and the eye of the law so regards it. (Greater New York charter, § 1620; People v. Willis, 158 N.Y. 392, 397.) The division thereof into chapters and sections is but formal. There is no force in the objection that the indictment sets forth different acts, committed necessarily at different times; and that each act, therefore, in itself constitutes a distinct crime. As it is not necessary to specify a public statute in the indictment ( People v. Willis, supra), this is not done, but parallel comparison clearly shows, as the learned district attorney states, that the indictment is found upon section 1551 of the charter. The sole crime charged is a breach of that part of the charter contained in this section; that, in itself, creates a misdemeanor. The crime is based upon a single transaction involved in the award, on January 4, 1898, of the work of cleaning the receiving basins connected with and forming a part of the sewer system of the borough of Brooklyn and city of New York. And each alleged act of evasion or violation "represents a phase of the same offense" — violation or evasions of different requirements of certain statutory procedure that must be followed in certain cases. If such acts of omission or commission are component parts, or represent preliminary stages of a single transaction, to set them out is not to charge separate crimes. ( Boland v. People, 25 Hun, 427; affd., 90 N.Y. 678; Read v. People, 86 id. 382; Woodford v. People, 62 id. 128; Osgood v. People, 39 id. 451; Whart. Cr. Pl. Pr. § 251; 1 Bish. New Cr. Proc. § 434.)
I think that the foregoing considerations are sufficient answer to the objection that fraud is alleged as a separate crime, but inasmuch as peculiar stress is laid upon this objection, it is pertinent to point out that there is a further and conclusive answer. Conceding that the pleader attempted to allege fraud, he has wholly failed. The indictment alleges that the agreed price of four dollars and seventy-five cents was grossly excessive, and further on, in a separate paragraph, equivalent words are used with the allegation that the defendant knew that the prices were grossly excessive and, notwithstanding, approved of certain bills. But before fraud can be predicated of an act, damages must result therefrom as the proximate result thereof. (Cooley Torts, 474; New York Land Imp. Co. v. Chapman, 118 N.Y. 288, citing Upton v. Vail, 6 Johns. 181; Hubbard v. Briggs, 31 N.Y. 518. See, too, Wheadon v. Huntington, 83 Hun, 371.) Now, it is not alleged that any sum whatever was ever paid on account of this work or that in consequence any liability was cast upon the city of New York, or that the defendant or any other ever profited to the loss or damage of the municipal corporation. If the theory of the indictment be sound, liability of the city can neither be inferred nor found. ( Nelson v. Mayor, 131 N.Y. 4; Kramrath v. City of Albany, 127 id. 575, citing authorities on pp. 581, 582.) Indeed, the indictment itself disavows consummation in that it alleges in conclusion that the acts were done "with intent to commit a fraud." At most the allegations would indicate the attempt. (Penal Code, § 34.) And there could not even be the conviction of an attempt unless the crime was charged. (Id. § 35.) The allegations that fall short of the charge of the crime are regarded as surplusage. ( Lohman v. People, 1 N.Y. 379; Dawson v. People, 25 id. 399.) If a count charge two or more offenses and yet but one of them sufficiently, no charge of duplicity will lie, for there must be complete averments of at least two crimes. (2 Bish. New Cr. Proc. §§ 440, 480, citing authorities. See Dawson v. People, supra; Whart. Cr. Pl. Pr. § 243.)
But this demurrer is based upon all of the grounds authorized by subdivisions 2, 3 and 4 of section 323 of the Code of Criminal Procedure, and, therefore, I am bound to test it further, although I have passed upon the points most dwelt upon by the learned counsel for the defendant. The serious question, to my mind, is whether this indictment states any act that constitutes the crime charged. The rule that in an indictment for a statutory crime, and especially for a misdemeanor, it is sufficient to charge in the words of the statute, does not obtain in this case, for the reason that the section does not define the offense, and, therefore, use of the statutory words would not give notice of what the offense consists. (Whart. Cr. Pl. Pr. § 220.) We must seek in other provisions of the charter for the law which is alleged to have been violated or evaded.
The defendant is charged with having let certain work, already specified in this opinion, on January 4, 1898, without advertisement, or procuring sealed bids or proposals, or inviting competition, or without written contract or specification, or without requiring security, or without the approval or authorization of the work, or without the certificate of the necessity of the expenditure or the certificate of authorization, or of the appropriation therefor. This procedure is prescribed in section 419 of the Greater New York charter. This section first provides that all contracts, except as otherwise provided, shall be made by the appropriate head of department under such regulations as shall be established by ordinance or resolution of the municipal assembly. Then follow these words: "Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for The City of New York, and the several parts of the said work or supply shall, together, involve the expenditure of more than one thousand dollars, the same shall be by contract under such regulations concerning it as shall be established by ordinance or resolution of the municipal assembly, excepting such works now in progress as are authorized by law or ordinance to be done otherwise than by contract, and, unless otherwise ordered by a vote of three-fourths of the members elected to the municipal assembly; and all contracts shall be entered into by appropriate heads of departments, and shall, except as herein otherwise provided, be founded on sealed bids or proposals, made in compliance with public notice," etc., and here follow the provisions of procedure that are alleged in this indictment to have been violated or evaded. Thus it appears that this statute does not make all works undertaken by the city of New York subject to a contract to be awarded and executed after the procedure indicated in section 419 and set forth in detail in the indictment, but only such work or job which in its several parts involves the expenditure of more than $1,000. This is the section upon which the indictment depends, save as hereinafter noted, and the indictment must be tested by it. In Swift v. The Mayor ( 83 N.Y. 528), the Court of Appeals passed upon the statute upon which this present provision is based. At page 537 the court, per RAPALLO, J., says: "The only objection made by the defense on the trial, to the plaintiff's right to payment of his claim was that the work was not contracted for pursuant to section 91 of the charter of 1873. No other point was made upon the trial in this respect. That section provides that whenever any work is necessary to be done to complete or perfect a particular job for the corporation, and the several parts of said work shall, together, 'involve the expenditure of more than one thousand dollars,' the same shall be by contract made by the appropriate head of department with the lowest bidder after advertisement inviting proposals. The work in question is conceded by this objection to have been done for the corporation, but it was not done to complete any particular job, nor did it necessarily involve the expenditure of more than one thousand dollars. The employment was for a service continuous in its character, but terminable at the pleasure of the employer. The mere fact that it might be continued so long as to cost the city in the aggregate more than one thousand dollars did not, we think, bring it within the provisions of the section. It was intended to apply to contracts for particular jobs involving a liability to pay the amount named, not to services for an indefinite period involving no obligation on the part of the city to continue the service."
There is before me then a statute that is not general, in that it applies to all public works, but only to public work of a certain character and involving the payment of a certain sum or more. By its own terms it is limited in its application, and that application is in effect expressed in the very enacting clause of the section. If any work in its several parts does not involve the expenditure of more than $1,000, then these particular provisions set forth in the statute, which are alleged in the indictment, do not apply.
Mr. Bishop in his New Criminal Procedure, in volume I, section 636, lays down the rule: " The negative of all exceptions in the enacting clause should be averred, unless such in form and substance that an affirmative offence will appear without." Mr. Wharton in his Criminal Pleading and Practice (§ 240), writes: "Where exceptions are stated in the enacting clause ( under which term are to be understood all parts of the statute which define the offence), unless they be mere matters of extenuation or defence, it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute."
The rule is most elaborately and cogently stated and sustained by many citations in the leading case of Commonwealth v. Hart (11 Cush. 130, 136), per METCALF, J., who, in the course of his discussions ays, inter alia, "The word 'except' is not necessary in order to constitute an exception within the rule. The words 'unless,' 'other than,' 'not being,' 'not having,' c., have the same legal effect, and require the same form of pleading." In Dawson v. People ( 25 N.Y. 402) the court, per SELDEN, J., says: "These qualifying words being found in the enacting clause of the statute, an indictment would not be good which failed to show that the defendant was not within their protection," citing authorities. The rule is well recognized, though not applied, in Fleming v. People ( 27 N.Y. 329) and again enunciated with authorities in Harris v. White (81 id. 532, 546, 547.) It is to be noted that there is a substantial difference recognized in the decisions between an exception in the enacting words of the statute and a mere proviso or subsequent qualification, and the decisions are entirely harmonized when this distinction is borne in mind. The reason for the rule as gleaned from the various precedents and as indicated by Mr. Wharton seems to be this: A statute that contains an exception in its enacting clause, does not, therefore, prescribe a general scheme, but rather a rule applicable to certain cases.
It is elementary that "An indictment upon a statute must state all such facts and circumstances as constitute the statute offense, so as to bring the party indicated precisely within the provisions of the statute." ( People v. Allen, 5 Den. 79; Wood v. People, 53 N.Y. 511; Eckhardt v. People, 83 id. 462; People v. Lowndes, 130 id. 463; United States v. Hess, 124 U.S. 483; People v. Winner, 80 Hun, 130.) The question upon this indictment is whether it states facts constituting the offense within the provisions of the statute. Is this work awarded on January 4, 1898, shown to be a contract on a particular job involving a liability to pay $1,000 or more within the interpretation of the Court of Appeals in Swift v. The City of New York ( supra)?
It is not stated how many basins were contemplated at the time the work was awarded, whether two or two hundred. It is not stated what expenditure was contemplated or involved beyond the allegation that the price was $4.75 per basin, so that even the sum of $9.50, or the price of cleaning two basins, might, for aught that appears, justify the statement. Not only is the number of basins contemplated not shown, but even the number of basins in the sewer system is not stated. It is not alleged that the work was to cover any stated period, or that the agreement could not at any time be terminated by the defendant. What is there then in the indictment to indicate that the work in question necessarily, involved the expenditure of $1,000 at the time this work was awarded? In my opinion this indictment fails to charge any violation or evasion of law based upon these provisions of procedure that in express terms are limited to work involving the expenditure of more than $1,000.
The fact that a different and distant paragraph of this indictment charges that the defendant approved, within a very short period, of divers bills, each appropriating $1,000, and aggregating more than $4,000, which were "for services in cleaning the sewer basins or receiving basins forming part of the sewer system of the said borough of Brooklyn and city of New York" does not cure.
There is no connection made by any averment between the work let out on January 4, 1898, and the work for which these bills were approved. Indeed, none is attempted to be made. Mere inference, however strong, is not a substitute for averment when the purview of the statute is to be established. For aught that is stated there appear two isolated transactions, namely, a statement in the 1st paragraph that on January 4, 1898, the defendant let out certain work in cleaning sewer basins to one Cunningham, and a statement that at other and different times the defendant let out certain bills of Cunningham for cleaning sewer basins. It is not alleged that the bills represented the work awarded on January fourth or any part of it, nor is there other statement to establish the sequence. "The indictment must show what offence has been committed and what penalty incurred by positive averment. It is not sufficient that they appear by inference." (Whart. Cr. Pl. Pr. § 225.) In People v. Albow ( 140 N.Y. 130) the court, per ANDREWS, Ch. J., says: "It is not sufficient to allege the facts from which an inference of the principal fact may be drawn. * * * 'No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, not inferentially, or by way of recital.'" But, even assuming that it be established by the terms of the indictment that the bills approved were rendered for work that was done by Cunningham under work awarded to him on January 4, 1898, that is not sufficient to establish an evasion or violation of the law. It must appear that the work, at the time when it was awarded, involved the expenditure of more than $1,000. "The mere fact that it might be continued so long as to cost the city in the aggregate more than $1,000 did not, we think, bring it within the provisions of the section," is the exact language of the Court of Appeals in Swift v. The Mayor ( 83 N.Y. 528, 537, 538). So here the mere fact conceding the connection that the bills rendered amounted to more than $1,000 did not bring the case within the provisions of the section.
Nor can the indictment be saved, in that the 2d paragraph alleges that the defendant employed Cunningham without the authority of the board of public improvements or that of the municipal assembly, and thereby evaded or violated the law, for the reason that the prohibitory section of the city charter — 413 — provides, "Except as herein otherwise provided, any public work or improvement within the cognizance and control of any one or more of the departments of the commissioners who constitute the board of public improvements, that may be the subject of a contract (not all work), must first be duly authorized and approved." The evasion or violation set forth in the 3d paragraph cannot sustain the indictment. It is there alleged that the defendant did incur the expenditure for said work without the certificates, either of the necessity therefor, or that the expenditure had been duly authorized and appropriated. But the words of the statute are: "No expenditure for work or supplies involving an amount for which no contract is required shall be made," etc. (not incurred) (§ 419), and there is no allegation in the indictment that any expenditure was ever made.
For these reasons I am of opinion that the indictment is fatally defective and must be thrown out upon the challenge of the demurrer. I have no concern with the guilt or innocence of the accused, nor do I, of course, in any way pass upon it. The sole question before me is whether this criminal pleading is good in law against this attack. In my opinion, it is no answer here to say that the days of strict construction have gone by, or that courts more and more disregard form for substance, and frown upon old-time niceties. It is not the intent or the purpose, either of Code provision or judicial construction, to dispense with the essentials of sound criminal pleadings. Those essentials in this case are not far to seek. This indictment, drawn upon a statute, must accurately and clearly state such circumstances and facts as bring him, the accused, precisely within the provisions of that statute, else he must not be put to the jeopardy of his trial. And this is so, not alone for the security of the accused man, but for the proper administration of the law. ( U.S. v. Hess, supra; People v. Albow, supra.) The general principles in criminal pleading substantially remain; it is "the strictness in unessential matters" that has been relaxed. ( People v. Dumar, 106 N.Y. 502, 512; People v. Albow, 140 id. 130; People v. Conroy, 97 id. 69; People v. Winner, 80 Hun, 130, 133.)
The demurrer is sustained.
"Any officer of the city government, or person employed in its service, who shall wilfully violate or evade any of the provisions of law, or commit any fraud upon the city, or convert any of the public property to his own use, or knowingly permit any other person so to convert it, or by gross or culpable neglect of duty allow the same to be lost to the city, shall be deemed guilty of a misdemeanor, and, in addition to the penalties imposed by law, and on conviction, shall forfeit his office, and be excluded forever after from receiving or holding any office under the city government; and any person who shall wilfully swear falsely in any oath or affirmation required by this chapter shall be guilty of perjury."
It is evidently essential, under the provisions of this statute, for the pleader to aver facts showing that the person charged was an officer of the city government; that he willfully violated or evaded a provision of law, or committed a fraud upon the city, or converted public property to his own use, or knowingly permitted another person so to convert it, or by gross or culpable neglect of duty allowed the property of the city to be lost. If the pleader has stated a case showing that the defendant has committed any one of these acts, or all of them if associated by averment proper in form, then he will have made a case which requires the defendant to plead thereto upon the merits. The offense, however, must be stated, and to accomplish that end nothing is to be taken by way of intendment, as the presumption is that every man obeys the law; and when a given act is attacked, it rests upon the asserting party to distinctly negative the affirmative condition created by the presumption.
In the main, the pleader in the present case has attempted to bring the defendant within the terms of the act creating the offense, by setting forth that in his capacity as commissioner of sewers of the city of New York he violated a provision of law in contracting for the performance of certain city work without having taken the steps required by law to regularly contract for the same. While the indictment is subdivided into parts, yet the pleader evidently intended to charge but one offense. The first averment to show that the defendant willfully violated a provision of law, is founded upon the requirement contained in section 419 of the charter. By the terms of that section it is provided: "All contracts to be made or let for work to be done * * * except as in this act otherwise provided * * * shall be made by the appropriate heads of departments under such regulations as shall be established by ordinance or resolution of the municipal assembly. Whenever any work is necessary to be done * * * or any supply is needful * * * and the several parts of the said work or supply shall, together, involve the expenditure of more than one thousand dollars, the same shall be by contract, under such regulations concerning it as shall be established by ordinance or resolution of the municipal assembly, * * * and all contracts shall, * * * except as herein otherwise provided, be founded on sealed bids or proposals, made in compliance with public notice, duly advertised * * *. The bidder whose bid is accepted shall give security for the faithful performance of his contract." By section 413 of the charter it is provided: "Except as herein otherwise provided, any public work or improvement within the cognizance and control of any one or more of the departments of the commissioners who constitute the board of public improvements, that may be the subject of a contract, must first be duly authorized and approved by a resolution of the board of public improvements and an ordinance or resolution of the municipal assembly."
It is clearly evident that the provisions of these sections contemplate two classes of contracts — one where the work to be performed or the supply furnished shall not exceed $1,000, and the other where it does exceed such sum. In the former, there is no requirement for a written contract, and no bidding is contemplated; in the latter, such requirements are mandatory. To offend against such a statute it must appear what the contract was, and wherein the law is violated. It is clear that if the contract price is less than $1,000, such contract is excepted from the operation of the law requiring it to be let after bidding. As the provision is general, requiring sealed bids before a contract can be made, and applies to all contracts above $1,000, so these contracts below that sum constitute an exception thereto. Such is the express language of section 413, "except as herein otherwise provided," and of section 419. By the statute creating the exception, therefore, the pleader was required to show, if he claims that the contract was one which required sealed bids, and was for the expenditure of a sum above $1,000, that the contract was not within the exception; otherwise no offense is stated. "'If an exception occurs in the description of the offense in the statute, the exception must be negatived, or the party will not be brought within the description.'" (Broom's Leg. Max. [8th ed.] [*]651.)
This rule of pleading has been recognized from the earliest times; and while great difficulty may sometimes attend upon the determination of whether the matter in the statute constitutes the same a proviso, when the rule is otherwise and the pleader is not required to state it or negative it, or an exception, yet, when the latter is found to be the fact, the rule is uniform and absolute that it must be pleaded or the pleading fails. ( Rowell v. Janvrin, 151 N.Y. 60.)
The provision in this statute as to contracts not exceeding $1,000 is an exception to those contracts requiring sealed bids and proposals; consequently we must see if the pleader has negatived it. Turning now to the indictment where the offense against this section is claimed to be averred, we find: " First: That the said James Kane, while an officer of the city government of the City of New York, aforesaid, to wit: Commissioner of Sewers, did, on the 4th day of January, 1898, award the work of cleaning the receiving basins connected with and forming a part of the sewer system of the Borough of Brooklyn and City of New York, to one George Cunningham, and did employ the said George Cunningham to perform such work at the price of four dollars and seventy-five cents per basin, which was grossly in excess of the value thereof, without advertisement, or procuring sealed bids or proposals for such work, or otherwise inviting competition, and without contract in writing, or specifications, and without requiring security for the faithful performance of said contract, in the manner prescribed by law." This averment states no more than to say that the defendant contracted with George Cunningham to perform the work of cleaning sewer basins at the price of four dollars and seventy-five cents per basin, without a contract in writing and without advertisement or sealed bids, and without requiring security for faithful performance. All of this may be admitted and yet the defendant act clearly within the law, and with the most scrupulous regard for the interests of the city. If the work did not exceed $1,000 (and there is not a word to show that it did, either in terms or of necessity), then what he did he had the clear right to do. ( Swift v. Mayor, 83 N.Y. 528.) It follows that no offense is stated in this paragraph of the indictment.
The 2d paragraph is equally faulty, for the reasons already assigned. This assumes to state a violation of the charter provision, section 413. As we have seen, the very first word of this section is "Except;" and evidently where a resolution is required, as is therein provided, it relates to contracts which exceed $1,000.
The 3d clause, dependent upon its construction, may be bad for two reasons. It avers: "That the said James Kane, while an officer of the city government of the City of New York, aforesaid, to wit: Commissioner of Sewers, did, on the 4th day of January, 1898, award the work of cleaning the receiving basins in the Borough of Brooklyn, the same being a part of the sewer system of the Borough of Brooklyn and City of New York, to one George Cunningham, and did employ the said George Cunningham to perform said work, and did incur the expenditure for said work, without having the necessity therefor certified by the head of the appropriate department, to wit: the Department of Sewers, and without a certificate that the expenditure had been duly authorized and appropriated, as required by law." This is based upon the last paragraph in section 419 of the charter, which reads: "No expenditure for work or supplies, involving an amount for which no contract is required, shall be made, except the necessity therefor be certified to by the head of the appropriate department, and the expenditure has been duly authorized and appropriated." This clause does not relate to the contract itself; the language used excludes it. No expenditure is to be made except the necessity be certified, and then only as authorized, and from an existing appropriation. Expenditure is here used in the sense of payment. Such is its ordinary signification. No bill is to be paid unless the amount necessary therefor is appropriated. The apparent object of the provision was not to prohibit a contract, but to prohibit the expenditure of money therefor unless the right thereto was certified, and unless the fund existed from which payment might be made. There is no averment showing in this view any offense.
As we have before observed, this indictment, although divided into paragraphs, is, nevertheless, but one count. While the Code of Criminal Procedure provides that the crime may be charged as having been committed in a different manner and by different means (§ 279), yet where resort is had to this method of pleading it must be by separate counts. The language of section 278 is: "The indictment must charge but one crime and in one form," except as provided in the next section. If any offense was committed under this clause of section 419 of the charter, then it was an offense committed by virtue of contracting for work which did not require sealed bids, etc., as it only relates to such contracts. We meet the same difficulty here that we have encountered before, except that the position is exactly reversed; for here the pleader met with a condition where he was required to plead the other exception, i.e., that it was a contract for which sealed bids, etc., were not required. In this he failed. If it be treated, as it must be, if it be anything, that the pleader was attempting to plead the same crime by different means, then it violated the provision of the Code of Criminal Procedure, and is not authorized by any system of criminal pleading of which we are aware.
The acts averred in the 1st and 3d paragraphs are necessarily inconsistent. The first could only be an offense if a written contract, based on sealed bids, etc., was required; the last could only be an offense by excluding and dispensing with the first. In this respect the pleading must fail. We also regard the 4th paragraph as failing to state an indictable offense. We think that this part of the indictment would have been good as charging fraud upon the part of the defendant, had it alleged that the act of the defendant, in approving the bills therein set forth, created a charge against the city of New York, whether such act resulted in damage to the city or not. It is the act creating the charge, coupled with the intent to commit a fraud, which constitutes the offense defined in section 1551 of the charter; and it matters not that such acts fail of consummation and the city suffers no damage therefrom. This count of the indictment, however, is destitute of allegation or words charging that the acts of the defendant created a charge against the city, or that it was one of the steps by which a charge might be created, or that the city could become liable to pay such or any claim by reason of the approval of such bills. All that the count charges is that the defendant approved certain bills for cleaning sewer basins, stating their amount, well knowing that no contract had been entered into for such work as required by law, and that such acts were in violation of law, and were done with an intent to commit a fraud upon the city of New York. It is clear, therefore, that no crime was charged. All of these things, if done, could not by any possibility defraud the city; and if it could not be defrauded by such acts, then certainly the acts themselves did not constitute a fraud or an attempt to commit a fraud, within the meaning of the law, and no offense is, therefore, charged in this paragraph of the indictment.
Nor is the indictment good as one charging an attempt to commit a crime. This is a distinct offense. (Penal Code, § 34.) Where there is an offense stated, the jury may convict of an attempt to commit the crime when they do not convict upon the main charge. (Code Crim. Proc. § 444.) But as we view the indictment it is not good as charging the offense, nor as charging an attempt to commit the offense.
The judgment should, therefore, be affirmed.
All concurred.
I think this indictment is insufficient. The defendant was indicted under section 1551 of the Greater New York charter for, while an officer of the city government, violating the law and committing a fraud upon the city in awarding a contract for cleaning the receiving basins connected with the sewers, for the price of $4.75 a basin, to one George Cunningham, without advertisement or competition, which price is alleged to have been grossly in excess of the value of the work. I think it is wholly unnecessary to discuss the question, often mooted as to criminal pleadings, whether it is necessary to negative an exception in a penal statute, and whether a case excluded from the operation of the statute constitutes an exception within the rule or not. Under no system of pleading imaginable is it sufficient in an indictment to charge an act which on its face appears innocent and not forbidden by law. The sections of the Greater New York charter as to letting work by contract seem to be exact reproductions of similar provisions in the Consolidation Act of 1882 (Chap. 410), and the charter of 1873 (Chap. 335). The contract set forth in the indictment is for no particular number of basins and was to continue for no particular time. It, therefore, was determinable at will, and did not necessarily involve any greater expenditure than for a single basin. It was held in Swift v. The Mayor ( 83 N.Y. 528) that an indeterminate contract of this character did not fall within the charter provisions referred to. On the face of the indictment, therefore, the act done by the defendant of itself was innocent and not criminal. It is alleged in the 2d paragraph that Cunningham was employed to do this work without having the work and expenditure authorized and approved by a resolution of the board of public improvements of the city or by an ordinance of the municipal assembly, as required by law. I can find no provision of law that requires either in the case of an expenditure of less than $1,000 not by contract. The 3d paragraph alleges that by this contract the defendant incurred an expenditure for said work without having the necessity therefor certified to him by the head of the proper department (himself) and without a certificate that the expenditure had been duly authorized and appropriated as required by law. I agree with Judge HATCH that this provision of section 419 refers to the payment of money by the comptroller. It was not a necessary prerequisite for the commissioner's action that he should certify to himself. It is not alleged in the indictment that the expenditure had not been authorized and appropriated according to law, but that no certificate had been made to that effect. I find no provision that requires any certificate of the character. A reference to the last sentence of section 419 of the charter shows clearly that it is only the necessity of the work that is to be certified.
It may be well at this point to observe a misconception in reference to the charter provisions governing this work that runs through the counsel's argument and may have affected the form of the indictment. The work, part of the ordinary maintenance of the department, may have been and in all probability was provided for in the budget fixed by the board of estimate; and, at the time of the acts alleged to have been committed by the defendant, the appropriation for his department depended solely on the action of that board, because of the hiatus between the time the two cities were consolidated and the time when the first regular tax levy of the consolidated city should be passed. There is no allegation whatever in the indictment that the obligation for this work was incurred by the defendant in excess of or without any appropriation therefor, but only that there was no resolution of the municipal assembly or the board of public improvements for the purpose. The board of public improvements had under the charter general cognizance of the subject-matter of cleaning the sewers, and it may be that if that board had passed a resolution directing that it be done by contract it would have been incumbent upon the defendant to have followed that direction. In the absence of any action by the board of public improvements he had the same power to employ Cunningham as any workman in the department. So much for the violation of express statutory provisions regulating the conduct of the city's business.
It may be that the subdivision of the work into quantities sufficient to bring it under the $1,000 limit and thus avoid competitive contracts would be an evasion of the charter provisions, and, under the section first cited, an indictable crime. The difficulty is that the indictment does not contain a suggestion of such an offense. In an indictment of that character, assuming that it would lie, there should be an allegation that the officer knew or believed and expected that the aggregate work to be done would exceed $1,000, and that he made the contract indeterminate in form, and, as not necessarily involving a greater sum, with the very intent to avoid the charter provision in that respect. An allegation of this character would be the very meat of an indictment for such an offense. Nothing of the kind is alleged. Other allegations might be necessary in the indictment suggested, which it is not for us to now consider. One has been given merely as an example.
I am of opinion that if a public officer knowingly employs or contracts for services at an excessive price, with the intent to favor the individual and injure the city, it would be of itself indictable, either as a completed act of fraud or as an attempt to commit a fraud, whether the contractor obtained the money or not. But here again the indictment is fatally defective. It charges that Cunningham was employed at a grossly excessive price, but it fails to allege that the defendant knew the price was excessive, or that his intention was to cheat the city in awarding the contract at such price. The scienter or intent is the very gist of either an indictment or a civil complaint in a case of fraud. Nor is the case helped out by the allegation of fraud or knowledge in the concluding paragraph of the indictment. There it is alleged that the defendant certified bills in favor of Cunningham, for the work done under the contract, knowing that they were in excess of the true value of the work, with intent to defraud the city. It is not alleged nor claimed, however, that the bills were in excess of the contract price. It may very well have been that the defendant knew when he certified the bills that they were in excess of the true value of the work; but if they were in accordance with a legal contract, previously entered into in good faith, it was his duty to certify them, whether the prices at which the work had been let were excessive or not. Some of these criticisms on the indictment may seem technical, but a good criminal pleading must necessarily be accurate and logical. No indictment for murder would be good unless it charged the intent to kill, and no detail in the narrative of the offense, showing the cruelty and deliberation with which it was perpetrated, could supply the absence of the allegation of intent, which is the gist of the crime. So in this case we have pointed out what are the essential elements of a proper indictment for fraud. The intent is a traversable allegation, with which the defendant can take issue, and which the jury must find before he can be convicted. The absence of a proper allegation is fatal to the pleading.
Judgment affirmed.