The People agt. Wise.

The Code of Civil Procedure, adopted in 1848, was fully as sweeping as the recent Code of Criminal Procedure; and in construing it the courts hold, in this language: "The legislature, in adopting the Code of Procedure, intended to preserve as many of the rules of the common law as are consistent with the new form of pleading" (Knowles agt. Gee, 8 Barb., 300; Boyce agt. Brown, 7 id., 80; Howard agt. Tiffany, 3 Sandf., 695; Wooden agt. Waffle, 6 How. Pr., 145).

Under the Code of Criminal Procedure, an indictment must contain "a plain and concise statement of the act constituting the crime, without unnecessary repetition" (sec. 275); and words used in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning (sec. 282); and, also, words used in a statute to define a crime need not be strictly pursued in an indictment, but other words conveying the same meaning may be used (Sec. 283). By sections 289, 290 and 291, special rules are provided for certain contingencies in cases of forgery and perjury. An indictment is declared to be sufficient if the act or omission charged as the crime is plainly and concisely set forth, and is stated with such a degree of certainty as to enable the court to pronounce a judgment upon a conviction according to the right of the case (Sec. 284). I take it that these provisions of the Code require that an indictment should show upon its face a criminal offense, and should do so with reasonable certainty; otherwise the section of the Code providing for a demurrer would be meaningless, for section 323 provides, as a good ground of demurrer, "that the facts stated do not constitute a crime."

If on an examination of the indictment I find that no offense is charged by it, and with reasonable certainty, it will be the duty of the court to sustain the demurrer. If, on the contrary, the indictment fairly construed in the light of the Code provisions and the rules of common law so far as applicable, sufficiently charges a crime or crimes, the demurrer

The People agt. Wise.

must be overruled. I do not think that judges should be over-nice in looking for loop-holes to set aside indictments, but if fundamental principles are violated there should be no hesitation in doing so.

Does the first count charge a criminal offense? The intention of the pleader evidently is, and as it is expressed in the count, to make out a case under section 94 of the Penal Code; that section enacts, "a person who willfully and unlawfully removes, mutilates, destroys, conceals or obliterates a record, map, book, paper, document or other thing filed or deposited in a public office, or with any public officer, by authority of law, is punishable," &c. This count, in brief, charges a mutilation by the defendant of a return of the western election district of the twelfth ward of the city of Albany, filed with him as supervisor of that ward, and sets forth a copy of the return, which it avers was filed with him, and at the end and as a part thereof has a certificate in these words: "We certify that the foregoing is a true copy of the original statement made by us for the board of county canvassers. Dated this 4th day of November, 1884," and signed by three inspectors of election.

In order to bring a case within this section of the Penal Code, it must appear that the instrument mutilated was filed or deposited with the defendant as a public officer by authority of law, unless therefore the return filed with the defendant was the one the law required him to receive, any mutilation thereof is not within this section. The section does not denounce the mutilation of every paper, but only where the paper is filed or deposited "by authority of law." In the State agt. Farrard (3 Hals., 333) it appears that a statute existed punishing as a crime to " willfully, unlawfully and maliciously tear, cnt, burn, or in any other way whatever destroy any transfer or an assurance of money stocks, goods, chattels or other property whatsoever." Farrard having tore an instrument which acknowledged the receipt of certain rye to be sown on shares, it was held, first, it was not an instrument

The People agt. Wise.

within the statute and hence no crime was committed, and, secondly, that the instrument set out in the indictment must appear to be papers of which the crime can be committed. In Ayers agt. Covill (18 Barb., 263) it was held that under the statute for stealing a record, etc., if the paper was wholly unauthorized and void it was not within the statute; that the instrument must be the one prescribed by the statute in order to make a crime (See Rex agt. Morton, 12 Cox's Crim. Cases, 456.) The elementary writers are equally explicit. "When the statute inakes a forgery of a particular kind indictable, the indictment must show it to be such, and a variance is fatal" (2 Whart. Crim. Law, sec. 1467 and cases). Though an allegation cover the statute, still if it contains also allegations which shows the acts are not within the statute, it will be insufficient (Bish. Stat. Crimes [2d ed.], sec. 621.)

The same author says the act forbidden by a statute must be fully done in all its parts, else the offense is not complete (Bish. on Stat. Crimes, sec. 225). In Fadner agt. The People (2 N. Y. Crim. Rep., 553) the defendant was indicted for the forgery of a certificate of a county clerk to an alleged copy of a decree of divorce; the certificate was not in the form prescribed by the Code, and it was held to be void, and therefore did not furnish the basis for an indictment for forgery (3 Fields' Lawyers' Briefs, sec. 538; 2 Bish. Crim. Law, [7th ed.], sec. 533; 1 Whart. Prac. and Pleadings [4th ed.], pp. 271, 281; Vincent agt. The People, 5 Park., 100).

An examination of the statutes prescribing the duties of inspectors of election and of supervisors, as affecting election returns, must now be made, that we may determine the kind of return that should have been filed or deposited with the defendant.

The duties imposed upon inspectors of election in relation to canvass and returns are as follows:

(1.) The canvass shall be completed by ascertaining how many ballots, etc. (1 R. S. [7th ed.], 389, sec. 42). (2.) A separate canvass shall be made of presidential and vice-presi

The People agt. Wise.

dential ballots (Id., sec. 43). (3.) The statement to be made by inspectors of the result of the election shall contain a caption stating the day on which, the number of the district, the town or ward and the county at which the election was held, in relation to which such statement shall be made. Also, showing the whole number of ballots taken for each person, designating the office for which they are given, and at the end thereof a certificate that such a statement is correct in all respects, which certificate shall be subscribed by the inspectors (Id., sec. 44). (4.) "A true copy" of the several statements made by the inspectors shall be made and certified by them and immediately filed by them in the office of the clerk of the town or city (Id., sec. 45). (5.) The original statement, duly verified, shall be delivered by the inspectors, or by ore of them, to be deputed for that purpose, to the supervisor of the town or ward within twenty-four hours after the same shall have been subscribed (Id., sec. 45). In addition to the foregoing a duplicate return is to be filed in the county clerk's office (Laws of 1880, chap. 56, sec. 14, p. 158). To summarize, the inspectors must (1), as a body, or by one deputed for that purpose, deliver the original statement, duly certified, to the supervisor of the ward; (2) file a true copy of the statement, duly certified by them, in the town or city clerk's office; (3) file a duplicate return in the county clerk's office.

Referring to the duties of supervisors in reference to election returns, the statute is clear and distinct, requiring the original statement or return to be delivered to the supervisor, and in no case does it contemplate or authorize him to receive a copy thereof (1 R. S. [7th ed.], 390, 391, 392, secs. 1, 5, 6, 12, 16 and 17). The statutes recognize four several different forms of returns: First. An original to be given to the supervisor. Second. A true copy to be filed in the town or city clerk's office. Third. A certified copy to be obtained by the county clerk when the county canvass cannot proceed for lack of returns. Fourth. A duplicate under the act of 1880, to be filed in the county clerk's office.

The People agt. Wise.

It appears on the face of the indictment that the return charged to be mutilated was not an orginal return, but a certified copy thereof. A copy could not take the place of the original, so far as the supervisor was concerned. As the paper set forth in the first count was not such an one as the defendant, as supervisor, should have filed, as deposited with him "by authority of law," the first count cannot consistently, with the common-law rules of pleading, or under the provisions of the Code, be sustained, and the demurrer to this count must therefore be allowed.

The second count proceeds under section 649 of the Penal Code, which provides: "A messenger appointed by authority of law to receive and carry a report, certificate or certified copy of any statement relating to the result of any election, who willfully mutilates, tears, defaces, obliterates or destroys the same, or does any other act which prevents the delivery of it as required by law; and a person who takes away from such messenger any such report, certificate or certified copy, with intent to prevent its delivery, or who willfully does any injury or other act in this section specified, is punishable,' etc. This section is evidently leveled against two classes of persons: first, a messenger appointed by authority of law; second, any person who interferes with such messenger.

It is modeled on 1 Revised Statutes (6th ed.), page 449, section 8, which was directed against misconduct of messenger or those who interfere with them. The words "or who willfully does any injury or other act in this section," do not enlarge the scope of the section, or affect any person except one who interferes with a messenger. This becomes plain when we recall that section 94 of the Penal Code makes provision for all cases of injury to returns, whether copies or originals, as they must be filed and deposited in a public office or with a public officer, and it would be unreasonable to so construe section 649 as to make a double crime of one act. The law forbids that statutes are to be so construed as to multiply crimes or felonies. (Bish. St. Cr. [2d ed.], sec. 218;