People v. Quinn , 44 N.Y. St. Rep. 920 ( 1892 )

O’Brien, J.

The defendant was found guilty of a misdemeanor, under ■chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws ■of 1888, commonly known as the “Bottling Act.” Upon the trial it was proven that the defendant had in his possession three bottles having marks and devices blown upon them, which were the property of the A. Liebler Bottling Company, a corporation duly organized under the laws of this state, •and which, in accordance with the requirements of the statute, had adopted these marks and devices, and caused a description of them to be duly filed and published, as required by the statutes. It is conceded by the appellant that the constitutionality of the act, and most of the other questions sought to be raised upon this appeal, are similar to those presented in the Cannon Case, 18 H. Y. Supp. 25, argued at the January term of this court, and decided in the people’s favor. It is unnecessary, therefore, to restate them, as they have not been urged upon this appeal, the defendant relying mainly upon one ground, viz., that the indictment was too indefinite and uncertain, and that the learned judge erred in denying the motion to dismiss. Section 331 of the Code of Criminal Procedure provides that objections mentioned in section 323 thereof can only be taken by demurrer, except that objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a crime, may be taken at the trial un-der a plea of not guilty and in arrest of judgment. Section 323, referred to, which states the grounds of demurrer to an indictment, states as the second .ground that the defendant may demur where it appears upon the face of the indictment that it does not “conform substantially to the requirements of .•sections 275, 276.” A reference to sections 275, 276, will show what an indictment should contain. In addition to the title of the action, etc., the second paragraph requires that it should contain “a plain and concise statement ■of the act constituting the crime, without unnecessary repetition. ” It will thus be seen that the question now presented has been waived, not having been taken by demurrer, as provided by the Code. Without, however, determining the appeal upon this ground, we think, upon the merits, regardless of the particular form or manner of raising the objection, that it is untenable. It should be remembered that no claim is made that the indictment does not state facts sufficient to constitute a crime, the objection being that they are not stated with sufficient definiteness. Unless, therefore, this objection was not available upon the trial, or unless it could be shown that the defendant was prejudiced thereby, the judgment should not be disturbed. Section 284 provides, in regard to a statement of the crime, that an indictment is sufficient if it 'can be understood therefrom “(7) that the act or omission charged as the crime was stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to-the right of the case.” Section 285 provides that no indictment is insufficient, nor can the trial, judgment, or other proceeding therein be affected, by reason of an imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. An application of these rules for determining the sufficiency of an indictment to the one found against the defendant will show that it is sufficient, and that the defendant was not prejudiced by reason of any indefiniteness therein. The indictment, in three separate counts, in the language of the statute, stated that the Liebler Bottling Company are engaged in manufacturing, bottling, and selling lager beer in bottles with its name and certain marks- and devices blown and impressed thereon; and that the defendant did unlawfully buy, (first count,) take, (second count,) traffic in, and dispose of (third count) three certain bottles, which, and eacli of which, were then and there so marked and distinguished, as aforesaid, with and by the name of said corporation and said marks and devices, of .which a description has been filed and published as aforesaid, and upon which and each of which said bottles then and there are the marks and devices of said corporation. It will thus be seen that the indictment charges the crime in the language of the statute creating and defining it; and this, we think, under the decisions and under the rules provided for testing the sufficiency of an indictment under the Code, is sufficient. In People v. Weldon, 111 N. Y. 569, 19 N. E. Rep. 279, the court, by Rutger, C. J., at page 574, 111 N. Y., and page 280, 191 N. E. Rep., says: “It is generally sufficient to state an offense in language used in the statute defining the crime. As said by Judge Eolger in Phelps v. People, 72 N. Y. 349, if the indictment avers the offense as the statute defines it, the averment is sufficient; for the rule is.that, while in framing an indictment on a statute all the circumstances which constitute the definition-of the offense in the statute itself, so as to bring the accused precisely within it, must be stated, yet no other description of the thing in which the offense was committed is necessary to be stated than that contained in the statute itself.” Eckhardt v. People, 83 N. Y. 462. We are of opinion, therefore, that the indictment was not so indefinite and uncertain as to have justified the granting of a motion to dismiss the same, and that there was no error committed by the learned judge in refusing so to do. The judgment should be affirmed. All concur.