People v. Farson

• Citation: 155 N.E. 724,244 N.Y. 413
• Parties: PEOPLE v. FARSON.
• Decision Date: 23 February 1927
• Court: New York Court of Appeals Court of Appeals

244 N.Y. 413

155 N.E. 724

PEOPLE

v.FARSON.

Court of Appeals of New York.

Feb. 23, 1927.

Lehman and Kellogg, JJ., dissenting. First Department.

John Farson was indicted for manipulating prices of securities in violation of Penal Law, § 953, and from an order of the Appellate Division (218 App. Div. 488, 218 N. Y. S. 41) reversing an order of the Court of General Sessions, which sustained a demurrer to the indictment, he appeals.

Affirmed.

Lehman and Kellogg, jj., dissenting.

Robert S. Johnstone, Charles Albert Perkins, and Saul S. Myers, all of New York City, for appellant.

Joab H. Banton, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

POUND, J.

Penal Law (Consol. Laws, c. 40) § 953, reads as follows:

‘ Manipulation of Prices of Securities. Any person, who inflates, depresses, or causes fluctuations in, or attempts to inflate, depress or cause fluctuations in, or combines or conspires with any other person or persons to inflate, depress or cause fluctuations in, the market prices of the stocks, bonds or other evidences of debt of a corporation, company or association, or of an issue or any part of an issue of the stock, bonds or evidences of debt of a corporation, company or association, by means of pretended purchases and sales thereof, or by any other fictitious transactions or devises, for or on account of such person or of any other person, or for or on account of the persons so combining or conspiring, whereby either in whole or in part a simultaneous change of ownership of or interest in such stocks, bonds or evidences of debt, or of such issue or part of an issue thereof, is not effected, is guilty of a felony, punishable by a fine of not more than five thousand dollars or by imprisonment for not more than two years, or by both.

‘A pretended purchase or sale of any such stocks, bonds or other evidences of debt whereby, in whole or in part, no simultaneous change of ownership or interest therein is effected, shall be prima facie evidence of the violation of this section by the person or persons taking part in the transaction of such pretended purchase or sale.’

Defendant was indicted for a violation of this section. The indictment charges defendant with the crime of manipulation of prices of securities, and alleges that such crime was committed as follows:

‘The said defendant, in the city and county of New York, on and from the 29th day of April, 1919, and thence to and including the 17th day of July, 1919, feloniously did inflate, and attempt to inflate, the market price of the stock of a certain corporation, company, and association called Hercules Petroleum Company, by means of pretended purchases and sales of such stock, and by divers other fictitious transactions and devices, a more particular description of which is to the grand jury aforesaid unknown, for and on account of the said defendant, whereby neither in whole nor in part was a simultaneous change of ownership of or interest in such stocks effected, as he, the said defendant, then and there well knew.’

Defendant demurred to the indictment on the grounds: (1) That it does not contain a plain and concise statement of the act constituting the crime, as required by Code of Criminal Procedure (sections 275, 276); (2) that it charges more than one crime; (3) that the facts stated do not constitute a crime. The Trial Term sustained the demurrer, but the Appellate Division overruled it.

[1] At the beginning we may reject as surplusage the words, ‘and by divers other fictitious transactions and devices, a more particular description of which is to the grand jury aforesaid unknown.’ They are clearly too uncertain in failing to state what such fictitious transactions and devices were. The validity of the indictment is not affected thereby. Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 340;Commonwealth v. Bolkom, 3 Pick. (Mass.) 281.

Defendant contends that the act constituting the crime is not sufficiently stated by the allegations that on and between certain dates defendant feloniously inflated, and attempted to inflate, the market price of the stock of a certain corporation by means of pretended purchases and sales of such stock for and on account of defendant, whereby neither in whole nor in part was a simultaneous change of ownership of or interest in such stocks effected; that the indictment should contain averments to identify the particular pretended purchases and sales relied on to sustain the charge and state the specific acts which constituted them, such as from whom the purchases were made and to whom the sales were made. The people contend that the indictment states all the circumstances which constitute the definition of the offense in the statute itself, and more, so that the accused is brought precisely within it, and that no other description of the way in which the offense was committed is necessary. Phelps v. People, 72 N. Y. 334, 349;People v. Weldon, 111 N. Y. 569, 19 N. E. 279;People v. Willis, 158 N. Y. 392, 393,53 N. E. 29.

[2][3][4] In drafting an indictment, it is sufficient to follow the statutory language, if it contains all that is essential to constitute the crime and apprise the accused of the nature of the crime charged. But, where analogous offenses at common law require more particular allegations, or where such language would not fairly inform the accused of the nature of the charge preferred against him, the act charged must be defined with greater particularity. Jelke v. U. S. (C. C. A.) 255 F. 264, 274, 275. In applying this test we are to construe the indictment liberally, and reject the objection, if it is technical or impracticable. 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. Code Crim. Pro. §§ 284, 285; People v. Williams, 243 N. Y. 162, 153 N. E. 35.

Starting with these fundamental rules, we are met with much difficulty in their practical application. A wealth of authority is to be found in the books both for and against the sufficiency of indictments challenged for lack of definiteness. 31 C. J. 714-720. They are helpful, but by no means controlling. No accumulation of such decisions will sustain this indictment nor condemn it. Illegal sales of liquor may be charged without naming the persons to whom the sales were made. People v. Seeley, 105 App. Div. 149, 93 N. Y. S. 982; Id., 183 N. Y. 544, 76 N. E. 1102. But Cullen, J., in People v. Corbalis, 178 N. Y. 516, 71 N. E. 106, which was a peculiar case under a peculiar statute, said that a charge of pool selling should name the person to whom the sale had been made to identify the occurrence and enable the defendant properly to meet the charge, although an allegation of sales to persons unknown would be sufficient. Parker, C. J., in the same case took the view which Cullen, J., rejected, that a charge of pool selling must state how the crime was committed, whether by placing a wager, maintaining a building, or by some other act included in the statutory definition of pool selling. Cullen, J., said that there is only one way of engaging in pool selling, and that is by selling pools. In People v. Devinny, 227 N. Y. 397, 125 N. E. 543, Hiscock, C. J., following Cullen, J., in the Corbalis Case, asserted that, in...