People v. Kane

Cullen, J. (concurring):

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 he 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 *485the 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 *486Cunningham-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 - diffi-culty is that the indictment does not contain-a suggestion of. such-ail • offense.-, Iiv: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 he 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 chárges that Cunningham was employed at a grossly excessive price, but it fails to allege-that the defendant knew the price wasx 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-*487duty 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 ofíense, 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.