153 Misc. 783, People ex rel. Todak v. Hunt

Citation:153 Misc. 783, 275 N.Y.S. 115
Party Name:THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN TODAK, Plaintiff, v. WILLIAM HUNT, Warden of Attica State Prison, Defendant.
Case Date:October 29, 1934

Page 783

153 Misc. 783

275 N.Y.S. 115



WILLIAM HUNT, Warden of Attica State Prison, Defendant.

County Court, Wyoming County.

October 29, 1934

Habeas corpus proceeding.


An indictment which charges the relator with the crime of burglary, third degree but fails to give the date when it was claimed the crime was committed, although defective is sufficient to give the court jurisdiction, if the defect is waived.

The essential of an indictment, within the meaning of section 6 of article 1 of the State Constitution, is simply "that a written accusation of a crime must be presented by the grand jury before an accused may be held for trial upon a charge of felony," and, therefore, if the indictment fills only this requirement the court has jurisdiction, and the details of time, place and manner of the commission of the crime may be supplied by a bill of particulars.

The relator's plea of guilty and his failure to move in arrest of judgment waived the defect of the omission of the date in the indictment. Moreover, the indictment must be regarded as valid in this habeas corpus proceeding, since the court, in which an indictment is found and is presented, must, in the first instance, determine the validity of the indictment.

Under the circumstances, the writ of habeas corpus sued out by the relator, convicted of burglary in the third degree, committed while armed with a revolver, is dismissed.


A. Stanley Copeland, for the relator.

John J. Bennett, Jr., Attorney-General [George R. Van Alstyne, Assistant Attorney-General, of counsel], for the defendant.


The relator was indicted by the grand jury of the county of Chenango on October 19, 1933, for the crime of burglary in the third degree. The indictment charged the defendant and one John Doe, whose name was to the grand jury unknown, designated as 'John Doe,' willfully, wrongfully and unlawfully in the village of Greene, Chenango county, N. Y., wrongfully and

Page 784

unlawfully, did break and enter into a building, to wit, the Maxson Feed Store building with intent to commit a crime therein, to wit, larceny, said John Doe actually breaking and entering into said building and the defendant John Todak being there present and a principal and aiding, assisting and abetting in said transaction, against the form of the [275 N.Y.S. 116] statute in such case made and provided, and against the peace of the People of the State of New York.

Said indictment was defective, in that it utterly failed to give any date when it was charged that the crime was...

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