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and 118 New York State Reporter expiration of the first year of the life of the company, as well as president thereof, and it may be assumed as a fair inference from this evidence, sufficient, at least, upon which to base the jurisdiction of the committing magistrate to hold relator, provided it further appeared that a crime or misdemeanor had been committed within the provisions of section 1533 of the Greater New York Charter; and this leads to the consideration of the vital question in the case at bar, namely, assuming that there was some evidence before the magistrate that the relator was a stockholder, officer, and director of the corporation, that he was at the time an alderman of the city, and while occupying these two positions the lease in question was executed by the corporation with relator acting as president, do these facts constitute a misdemeanor within the section of the Greater New York Charter quoted? The relation of relator to the New York Contracting & Trucking Company as its president and as a director undoubtedly was one simply of agency, and under this relation alone, aside from his being a stockholder, it cannot be argued seriously that relator was within the charter provision invoked, which leaves for our consideration his relation to said corporation as a stockholder only.

It is well to bear in mind some familiar rules of construction in determining this question. The misdemeanor charged is, of course, malum prohibitum, and not malum in se, and as such must be brought directly within the statute, and criminal intent may not be presumed, but must be proved. There is no warrant for invoking judicial construction to extend the statute beyond its plain terms, and unless the crime or misdemeanor charged comes within the words of the provision of the charter invoked, it may not by construction be extended so as to embrace it; or, in other words, a statute which makes penal an act innocent before may not be extended to cases not clearly within its meaning and objects. This raises the question whether, if there be reasonable doubt in the case as to the misdemeanor charged coming within the spirit and the letter of the statute or not, the relator is not entitled to the benefit of such doubt. It would seem that he is entitled to such benefit. If the intentional acquisition of every expected benefit from a contract with the city is deemed to have been within the penal effect of the provisions of the section invoked before its amendment in 1901, then, clearly, every time any member of the municipal government essayed as a passenger to board the car of any of the street railway companies conducting their railways under a franchise from the city, subscribed for the supply of lighting gas or electricity by those likewise operating under municipal consent, or availed himself of the transit conveniences of the licensed cabman or the carriage of the licensed drayman, he subjected himself to the punishment imposed. Will any rationally minded person contend that this is what the Legislature meant? Assuredly not. Yet such must be taken to have been its meaning if nothing more than a stockholder's relation to the corporation having contracted with the city invited the application of the provisions alluded to before the amendment, because that relation implies some general possibility of benefit. Such an interpretation of the charter provision is repugnant to and tortures common sense. Then what was the

interest in the contract with the city the acquisition of which it was intended to prohibit if the charter provisions were not to be restricted to the interest of a party, openly or covertly so, to the contract itself as distinguished from the benefit merely to strangers to the contract thereunder? Who can tell? The charter did not in terms restrict the application of its penal provisions, and we cannot assume that the Legislature intended that its enactment should be carried to the point of atrocious absurdity. Is the relator, in view of this ambiguous state of the charter provision under examination, to be made criminal by the invocation against him of the broadest possible meaning of the language employed and for the commission of an act which in and of itself is untainted with any degree of moral obliquity ? Clearly not. The law mercifully and humanely requires that the doubt be resolved in his favor, and that the more reasonable and restricted interpretation of the penal provisions alluded to shall prevail lest the unwary and morally innocent of attempted violation of the law be led into a trap arising from the imperfect expression of legislative intention.

No better illustration can be given of this principle than in the language of Chief Justice Marshall in a leading case before the Supreme Court of the United States (U. S. v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37), as follows:

“The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not in the judicial, department. It is the Legislature, not the court, which is to define a crime and ordain its punishment. It is said that, notwithstanding this rule, the intention of the lawmaker must govern in the construction of penal as well as other statutes. This is true. But this is not a new, independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this: that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the Legislature. This maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in the sense in which the Legislature has obviously used them, would comprehend. The intention of the Legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one, indeed, which would justify the court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases."

And we are not without express authority on the subject in the Reports of our own courts. In Chase v. N. Y. C. R. R. Co., 26 N. Y. 523, the court, per Marvin, J., says:

"The great, leading rule for the construction of statutes is to ascertain fairly the intention of the Legislature in enacting the statute. In statutes giving a penalty if there be reasonable doubt of the case, made upon the

and 118 New York State Reporter trial or in the pleadings, coming within the statute, the party of whom the penalty is claimed is to have the benefit of such doubt."

The true purpose is to give effect to the intent of the Legislature as deducible from the language employed, and never to extend the language by implication to cases not within such intent as declared by the words used. Strong v. Stebbins, 5 Cow. 210. And see Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314.

There seems to be no room for doubt that the Legislature, in amending section 1533 of the Greater City Charter, intended to clear some ambiguous question of construction, otherwise the amendment was useless; and we are not to infer such to be the case. Section 1533, before amendment, and under which relator is charged with the misdemeanor, read:

"No member of the municipal assembly, head of department, chief of bureau, deputy thereof, or clerk therein, or other officer of the corporation shall be or become directly or indirectly interested in or in the performance of any contract, work or business, or the sale of any article," etc.

By the amendment (Laws 1901, p. 632, C. 466) the section is made to read that:

"No member of the municipal assembly, head of department, chief of bureau, deputy thereof, or clerk therein, or other officer of the corporation, shall be or become interested directly or indirectly as contracting party, partner, stockholder or otherwise in the performance of any contract, work or business, or the sale," etc.

If the section as amended had been in force at the time of the alleged misdemeanor, relator would have come directly within its provisions; but it was not then in force in such form, and, to say the least thereof, it certainly was ambiguous as to whether it would embrace the relation of stockholder to a corporation or not.

Assuming, therefore, that there cannot be attributed to the Legislature the doing of a wholly unnecessary or superfluous act in the amending of the charter to take effect on the Ist day of January, 1902, the amendment must be treated as a matter of substance, and to be given effect, and, so considering it, the intent is plain to make the application to stockholders in the future, which necessarily assumes that under the statute as it had stood, within the intent of the Legislature, a mere stockholder was not an interested party. It does not seem to me that the insertion of the word “stockholders” in the amended section was simply to make clear and to remove any doubt without altering the meaning of the clause as it stood. The very fact of this legislative change of itself indicates at least that in the legislative mind the terms first used were doubtful, and open to different constructions, or at least contentions; and if that be so, relator should not have been held. Nor is it hardly reasonable to assume that the amendment of 1901, to take effect on January 1, 1902, was merely in the nature of legislative interpretation or construction of the section as it stood before that time, and only on such view ought the relator to have been held.

I am aware of the fact that distinguished lawyers have taken different views upon the question of whether a mere stockholder is an interested party within the purview of section 1533, p. 535, of the Greater New York Charter, as it stood before amendment, and that the question might ordinarily present grave ground for debate; but the fact remains that the Legislature has undertaken by its amendment to enumerate stockholders among the class of those subject to the provisions of section 1533 of the Greater New York Charter, and it is but fair to infer that such amendment was made.either because the prior enactment was ambiguous, or because it intended to add to the substance thereof by enacting specifically that stockholders should be liable. Considered in either aspect, the facts before the committing magistrate, in my judgment, did not charge the relator with a crime or misdemeanor; hence the demurrer should be sustained.

Demurrer sustained, with costs.

PEOPLE V. MARTIN et al. (Supreme Court, Appellate Division, First Department. November 20, 1903.) 1. INDICTMENT-PRESUMPTION OF SUFFICIENCY AND LEGALITY OF EVIDENCE-

CONTRADICTORY PROOF-SUFFICIENCY.

On motion to quash an indictment the affidavit of defendant's attorney averred that the affiant had charge, on behalf of the accused, of an inquiry before a committing magistrate; that the witnesses examined before the grand jury on which the indictment was found were the same witnesses examined before the magistrate; that there was no other evidence before the grand jury than that before the magistrate, which was insufficient on which to found an indictment. Held, that these averments were mere conclusions drawn from what the affiant conceived to have been the situation before the grand jury, he not being acquainted with what took place in the jury room, and were insufficient to overcome the presumption that the indictment was on legal and sufficient evidence, where the affidavits in opposition alleged that

there was additional evidence. 2. SAME-SUFFICIENCY OF EVIDENCE-DECISION ON HABEAS CORPUS, EFFECT ON

MOTION TO QUASH.

Where, on ha beas corpus proceedings sued out by an accused, it was decided that the evidence before the committing magistrate was sufficient to hold him on the charge made, the claim that the indictment should be quashed because the evidence before the grand jury, which was based on the same evidence as that given before the magistrate, was insufficient on which to found it, was una vailing.

Appeal from Court of General Sessions, New York County.

Robert L. Martin and another were indicted for perjury. From an order denying a motion to quash the indictment, defendants appeal. Affirmed.

See 79 N. Y. Supp. 340, 1141.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

Franklin Bien, for appellants.
Henry G. Gray, for respondent.

PATTERSON, J. This is an appeal from an order of the court of general sessions of the peace of the county of New York, denying a motion made by the defendants to quash an indictment found against them, the grounds of the motion being that the indictment

and 118 New York State Reporter was based upon illegal evidence received by the grand jury, to the prejudice of the rights of the defendants, and each of them, before the grand jury; and, further, that the legal evidence received by the grand jury was entirely insufficient to warrant the finding of an indictment against them, or either of them. The indictment was found in December, 1901. The defendants demurred thereto, and the demurrer was sustained in the first instance, but the judgment sustaining it was reversed by this court in August, 1902, and the judgment entered upon that reversal was affirmed by the Court of Appeals in June, 1903, 67 N. E. 589. The offense charged against the defendants and set forth in the indictment is that they, as officers of a corporation organized under the laws of the state of Delaware, had sworn that certain facts stated in a certificate required by the laws of the state of Delaware to be filed in the office of the Secretary of State of that state were true, when in truth and in fact they were untrue to the knowledge of the affiants, and that the statements were false in fact. The motion to quash the indictment was made after the demurrer was finally overruled, and was presented to the court upon affidavits, one of them being made by the attorney for the defendants, who, after giving a general statement of the proceedings had upon the indictment, states that he had personal charge on behalf of the defendants of an inquiry before a committing magistrate, and that the witnesses examined before the grand jury upon which the indictment was found, were the same witnesses examined before the police magistrate, and that there was no other or different evidence produced before the grand jury than that before the police magistrate. He also asserts that the original certificate or statement sworn to by the defendants, and upon which the indictment was based, was not before the grand jury, and that "the only testimony that could have been produced before the grand jury upon which the indictment was found must have been the same that was produced before the magistrate, which was entirely insufficient to warrant the holding of the defendants and entirely insufficient to find an indictment against the defendants, or either of them.” He further asserts that the grand jury had before them only an alleged certified or exemplified copy and alleged photographic copy of the original certificate sworn to by the defendants, and that hence there was not evidence sufficient to justify the finding of an indictment.

It is doubtful, to say the least, whether the order denying the motion to quash the indictment can be reviewed by an independent appeal (People v. Petrea, 30 Hun, 98; People v. Ostrander, 29 Hun, 513; People v. Beckwith, 42 Hun, 366; People v. Hovey, 30 Hun, 354; People v. Rutherford, 47 App. Div. 209, 62 N. Y. Supp. 224; People v. Trezza, 128 N. Y. 529, 28 N. E. 533) or whether, if the order is appealable at all, it must not be brought up for review as an intermediate order on an appeal from a judgment of conviction. It is not necessary, however, to decide that question now, for the affidavits, even if an appeal lies, were entirely insufficient to justify the granting of the application. The assertion that the evidence before the grand jury who found the indictment was none other than that which was produced before the police magistrate is only an assump

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