People v. Bogdanoff

• Citation: 171 N.E. 890,254 N.Y. 16
• Parties: PEOPLE v. BOGDANOFF et al.
• Decision Date: 15 May 1930
• Court: New York Court of Appeals

254 N.Y. 16

171 N.E. 890

PEOPLE

v.BOGDANOFF et al.

Court of Appeals of New York.

May 15, 1930.

Alex Bogdanoff and others were convicted of first degree murder, and they appeal.

Affirmed.

CRANE, KELLOGG, and HUBBS, JJ., dissenting.

Appeal from Erie County Court.

Thomas L. Newton and Stanley G. Falk, both of Buffalo, for appellant Bogdanoff.

Ernest W. McIntyre and Charles T. Yeager, both of Buffalo, for appellant Rybarczyk.

W. Bartlett Sumner and Daniel J. O'Neil, both of Buffalo, for appellant Grzechowiak.

Guy B. Moore, Dist. Atty., of Buffalo (Walter F. Hofheins, of Buffalo, of counsel), for the People.

LEHMAN, J.

Evidence which is not challenged establishes that on the 27th day of July, 1929, Ferdinand Fechter was killed in the city of Buffalo, Erie county. His death was the result of wounds inflicted by robbers who escaped with a large amount of money which Fechter was carrying from a bank to his home. On September 7, 1929, the defendant Rybarczyk was arrested. Early the next day the other two defendants were arrested. At the police station they were questioned separately and together. Two made written statements admitting that they had taken part in the robbery. The defendant Rybarczyk make no written statement, but the evidence establishes that he admitted before a number of witnesses that he had taken part in the robbery and that the written statement of Grzechowiak, made in his presence, was true. The grand jury indicted the defendants on September 12th for ‘murder in the first degree contrary to Penal Law, section 1044.’ Upon that indictment the defendants were arraigned, tried and convicted.

The district attorney filed a bill of particulars stating, ‘That Alexander Bogdanoff, Max Rybarczyk, Stephen Grzechowiak and John Doe, on the 27th day of July, 1929, at the City of Buffalo in this County, killed Ferdinand Fechter by shooting him.’ The defendants did not question before the trial the sufficiency of the indictment or demand any further bill of particulars. At the trial they moved to dismiss the indictment on various grounds intended to raise the question of whether the indictment of the grand jury, though complying with the form authorized by section 295-d of the Code of Criminal Procedure, chapter 176 of the Laws of 1929, is such a written accusation as accords with the constitutional rights and guaranties of the accused.

In the Federal Constitution and in the Constitution of many of the states, express provision is made, in language similar to that found in section 6, article 1, of the Constitution of New York, that ‘no person shall be held to answer for a capital or otherwise infamous crime * * * unless on presentment or indictment of a grand jury.’ Long before the Constitution of state or nation was adopted, the principle that trial for a felony must be preceded by a sworn accusation of a grand jury was firmly established in the common law. ‘The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty.’ Jones v. Robbins, 8 Gray (Mass.) 329, 344. Indeed, in that case it was decided that the clause in article 12 of the Declaration of Rights of the Massachusetts Constitution, which reads, ‘no subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty or estate, but by the judgment of his peers or the law of the land,’ must be so interpreted that no subject can be held to answer for an infamous crime except upon indictment or presentment of a grand jury. See Commonwealth v. Harris, 231 Mass. 584, 121 N. E. 409.

Doubtless the framers of the Constitution of the State of New York had never seen or heard of an indictment couched in simple untechnical language. At that time specialized knowledge of legal precedents and the technical craftsmanship of a legal artist were required for the drawing of an indictment. Perfection of form was essential to validity. Justice might be delayed or defeated by legalistic insistence upon statement of details which served no useful purpose.

For generations attempts have been made, with varying degree of success, to simplify forms of indictment. Such attempts may not be thwarted by insistence upon the preservation of outworn legalistic formulas. ‘An indictment, then, within the meaning of the constitution, is nothing more than what it is defined to be by Blackstone (4 Com. 302), ‘a written accusation, of one or more persons, of a crime or misdemeanor, preferred to, and presented by, a grand jury, upon oath.’' Wolf v. State, 19 Ohio St. 248. We may not hold that the framers of the Constitution intended that all the formalities of the old common-law indictments must remain foreverinviolate. They intended, undoubtedly, 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. From the days of Magna Charta, the law of the land accorded an accused such protection against unfounded charges. The Legislature cannot dispense with a ‘written accusation’ by the grand jury, but it can prescribe new forms of indictments, and dispense with some of its technical formalities. See Lougee v. State, 11 Ohio, 68;State v. Schnelle, 24 W. Va. 767.

In this State, the Legislature long ago provided a simplified form of indictment. ‘All the forms of pleading in criminal actions, heretofore existing, are abolished; and hereafter, the forms of pleading, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code.’ Code Crim. Proc. § 273, originally section 289 of the Code of Criminal Procedure as reported by the Commissioners on Practice and Pleadings to the Legislature in 1850.

It is significant that the Legislature not only abolished all the existing forms of indictment, but also provided its own rules by which the sufficiency of the statutory pleadings should be determined. An indictment is sufficient if those elements which the Legislature deemed essential for the protection of an accused can be understood from its form and language. The report of the Commissioners proposing and defending the new system is itself a plea for the substitution of a logical in place of a legalistic approach to the problem. ‘They are,’ they reported, ‘not ignorant of the fact that their proposed reform will strike at the root of a system, artificial and absured in itself, and which is only saved from the contempt it merits, by the frequent use of the names of venerable legal authorities, under whose sanction it has grown and ripened into maturity. * * * Nor will they allow themselves to believe that absurdities and fictions, so glaring and gross in themselves, as to provoke the laughter and contempt of the intelligent, will be permitted to continue longer than until a safe substitute for them can be found.’

Though doubtless it is the function of the Legislature, rather than the courts, to devise wise substitutes for obsolescent machinery of the law, at times the courts must determine whether such substitutes are safe and reasonably calculated to serve their purpose. Constitutional limitations at times restrict the legislative powers at least to that extent. ‘We shall not consider how far the legislature might go in simplifying indictments before encountering article 12 of the Massachusetts bill of rights. We admit that there are limits to its powers in this direction; that, for instance, it could not authorize the omission of allegations necessary to describe a specific crime.’ Holmes, J., in Commonwealth v. Freelove, 150 Mass. 66, 22 N. E. 435.

Article 12 of the Massachusetts Bill of Rights provides that: ‘No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially, and formally described to him. * * * And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, * * * or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.’ No simplification of an indictment which might deprive an accused of these constitutional guaranties could be sustained by the courts.

In this jurisdiction the courts have used a similar test in determining the sufficiency of indictments. In People v. Farson, 244 N. Y. 413, 417, 155 N. E. 724, 725, the court said, per Pound, J.: ‘The indictment is sufficient, if it identifies the charge against the defendant, so that his conviction or acquittal may prevent a subsequent charge for the same offense; notifies him of the nature and character of the crime charged against him to the end that he may prepare his defense; and enables the court upon conviction to pronounce judgment according to the right of the case.’ In other jurisdictions the test has been at times formulated in other manner, but the test has been essentially the same.

We shall not analyze the multitudinous decisions determining the sufficiency of indictments. In some jurisdictions the courts have strictly construed the language of indictments, and have sustained technical objections which affected no substantial right of an accused. In New York and other jurisdictions it has been noted that the courts, acting under command of the Legislature, measure the sufficiency of indictments solely in relation to the substantial rights of the accused, guaranteed either by the express language or the fair intendment of the Constitution. Even so, the present indictment is certainly not sufficient if measured by any test heretofore applied by ...