Loomis v. People

Hardin, J.: At the trial in the Court of Sessions in Jefferson county, after a plea of not guilty, and after the People had commenced giving their evidence, the prisoner objected that no evidence could be given, and moved to quash each count of the indictment upon the following grounds : (1.) The indictment pui’ports to have been found in the Oyer and Terminer, and there is no caption to the indictment. (2.) Nor does the record of this conrt anywhere show that there was, [603] a competent court in session at the time, or who comprised the. court, or that any grand jury was then and there sworn, or the-names of the jurors. The objection was overruled, and the motion to quash was denied, and the prisoner took an exception. The caption and commencement to the indictment was as. follows : State on New York, Jefferson Bounty. At the Court of Oyer and Terminer, held in and for the county of Jefferson, at the court house, in Watertown, on the 10th day of June, in the year one thousand eight hundred and seventy-eight, the grand jurors of the People of the State of New York, in and. for the body of the county of Jefferson, upon their oath, do present, that Manly Loomis, of the town of Wilna, in the county of Jefferson, and State of New York, on the 1st day of August, in the year of' our Lord one thousand eight hundred and seventy-seven, at the. town of Wilna, in the county of Jefferson and State of New York, knowingly and willfully became and was a party to, and! knowingly and willfully did make an assignment and conveyance-to Ellen Loomis of the right, title and interest that he, the saidi Manly Loomis, then and there had in and to the lands and tenements hereinafter described, to wit: Subsequently, when the record of conviction was made up and which is now before us, a full and complete caption was inserted. We think there was no error in denying the motion to quash the indictment. The indictment had been removed from a superior to an inferior court. (Wharton’s Prec. and Pleas, p. 1, note F.; The People v. Guernsey, 3 Johns. Cas., 265; Bishop on Crim. Proc. [2d ed.], §§ 665, 666; People v. Jewett, 3 Wend., 320; People v. Bennett, 37 N. Y., 117; People v. Haynes, 55 Barb., 450.) The indictment avers that the prisoner conveyed his real estate, naming it, to one Loomis, with intent to defraud creditors. Some of the creditors are named and others are stated to ba unknown to the grand jurors. (1.) The conveyance of the property is distinctly averred.. [604] The intent to defraud creditors of the prisoner is likewise distinctly averred and two of them named. We think the averments sufficiently definite under the language of the statute. Objection to the mere form of the indictment should be taken advantage of by demurrer or motion before the trial. (Berry v. People, 8 Weekly Digest, 15; King v. Matthews, 5 Term Reports, 162.) The character of the debt or the manner in which it arose meed not be stated, in order to support the averment of the indictment that the conveyance was made with intent to defraud creditors of the prisoner. (People v. Underwood, 16 Wend., 546; Laws of 1831, chap. 300, § 26, p. 402.) Under the indictment it was competent for the People to show the conveyance by the prisoner by deeds, or mortgages of his property, with intent to defraud “ any creditors.” And, secondly, to establish the existence of debts at the time of the averment in the indictment named, the conveyance or disposition of the property. But we do not see how it was competent to establish indorsements made, or debts created, after the alleged crime was committed. Such evidence was offered and objected to by the prisoner’s counsel and received and an exception taken, and the counsel for the prisoner subsequently moved to strike out “ all evidence of indebtedness which occurred after August 1, 1877, on the ground that it is incompetent and immaterial and has no bearing upon the charge.” The motion was denied and an exception taken. The statute declares it a crime to convey property with intent to defraud “any creditor,” and seems to refer to debts and creditors then in existence. The prisoner was sworn as a witness in his own behalf, and the learned district attorney cross-examined him, and drew from him the fact that ho had been previously examined before one Gilbert, in proceedings supplementary to execution. The prisoner .stated his signature to the examination and evidence to be genuine. That was objected to by the prisoner’s counsel, as prohibited by Statute, as incompetent and immaterial. The court overruled the objection and exception was taken by the prisoner. Then the "witness said he signed the evidence taken, and the district attor [605] ney quoted from the minutes of that former examination, and tho witness was asked as to which was true, statements made upon, this trial or statements in the evidence quoted from the supplementary proceedings. Section 292 of the Code of Procedure regulating suppolmentary proceedings provides, viz.: “No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his. examination Avill tend to convict him of the commission of a. fraud ; but his answer shall not. be used as evidence against him. in any criminal proceeding or prosecution.” * * By quoting his ansAvers in the supplementary proceedings and contrasting them Avith his evideñce upon this trial, and asking him which were true, the “ answers ” were used in this criminal prosecution against the prisoner and in violation of the provision of section 292 of the Code of Procedure. The ruling and the reception of such evidence or' portions of his “ ansAvers ” were erroneous. (Forbes v. Willard, 54 Barb., 520 ; Barber v. People, 17 Hun, 366.) The evidence in the supplementary proceedings was not voluntary ; the law required him to “answer.” (Code of Procedure, § 292 ; People v. Hendrickson, 1 Park. C. R., 406.) We cannot say hoAV much this contrasting of the statements made by the prisoner may have affected his credibility Avith thq jury. He had given evidence tending to establish his innocence, and had the jury believed him, they might have acquitted instead of convicted him of the crime charged in the indictment. Por this error occurring upon the trial, we must :set aside the verdict of conviction and reverse the judgment, and remit tho proceedings to the Court of Sessions of Jefferson county, Avith directions for a neAV trial. Talcott, P. J., and Smith, J., concurred. Conviction and judgment reversed and proceedings remitted to the Court of Sessions of Jefferson county, with directions for a. new trial.