Posted On: July 12, 2013 by Stephen Bilkis

Order must be reversed

On May 29, 1953, the accused man was indicted, by long form indictment, on four counts of common-law larceny--one count of grand larceny and three counts of petit larceny. None of the counts alleged that he made use of false or fraudulent representations in the course of accomplishing the various thefts. Under the circumstances, criminal evidence of such representations could not be received over his objection. When the complainant sought to introduce such evidence during the course of the trial, the accused man objected. Thereupon, acting pursuant to Code of Criminal Procedure, the trial court permitted the complainant, over the accused man's objection, to amend the indictment by adding four new counts, each the same as the four original counts, except that allegations of false pretense and fraudulent representation were included in the new counts. The accused was thereafter found guilty only of count 5 (grand larceny in the first degree by false pretenses), the other 7 counts having been dismissed. The judgment of conviction was reversed by the court and the indictment was dismissed. The dismissal of the indictment was affirmed by the Court of Appeals on the ground that the trial court was without statutory authority to grant the amendment of the indictment.

On November 9, 1955, the accused man was indicted for grand larceny in the first degree committed as a result of false pretenses and fraudulent representations, the indictment being for the same crime charged in count 5 of the prior indictment, as amended at the trial.

In March, 1956 he moved to dismiss the new indictment on the ground of double jeopardy. The motion was granted by the order from which the appeal is taken. These are white collar crimes. Bank fraud was not charged.

The order should be reversed and the motion to dismiss the indictment was denied because the original indictment that may have been valid is found to be immaterial. When the original indictment was amended during the course of the trial to include count 5 (among others) charging grand larceny by false pretense and fraudulent representation, the indictment, insofar as it included count 5, was invalid because the court was without statutory authority to grant the amendment. Count 5 was the only one on which the man was convicted. He was never placed in jeopardy on that count because the charge therein contained was not validly included in the indictment. No valid judgment could have been pronounced thereon, even though the facts adduced at the trial may have warranted it.

The order must also be reversed since the accused man was not acquitted on the merits. Count 5 of the amended indictment was dismissed upon an objection to its form or substance and, therefore, the dismissal may not be deemed an acquittal for purposes of double jeopardy. The objection to the conviction with respect to count 5 of the amended indictment was that it was not found by a grand jury, and that the court was without authority to grant the amendment, which are defects in substance. The dismissal with respect to count 5 of the amended indictment was only because it was defective and not because there was an acquittal on the merits that the Court of Appeals in effect held that, insofar as count 5 was concerned, the indictment was not duly found, the court was without jurisdiction to have rendered any valid judgment with respect to count 5, and all prior proceedings with respect to count 5 were invalid. Under such circumstances, there can be no jeopardy and since the man procured count 5 of the amended indictment to be quashed, he cannot assert that he was in jeopardy under it.

To be able to win your criminal or larceny case, it is helpful to have the legal representation of the Kings County Grand Larceny Attorney or the Kings County Robbery Lawyer from Stephen Bilkis and Associates. The Kings County Criminal Attorney can also help you explore your legal options to make sure that you win your battle.