| N.Y. Sup. Ct. | Dec 11, 1889
By section 465 of the Penal Code, any person guilty of using any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law, is guilty of a misdemeanor. The indictment in this case charged, in terms, that said Farrell, with force and arms, the dwelling-house of one Goss unlawfully and feloniously entered into and upon the same, being then and there the possessions of said Goss, and used force and violence in entering therein, and in a manner not provided or allowed by law. The defendant demurred to the indictment on the grounds—First, that the facts stated in the indictment do not constitute a crime; and, second, that the indictment does not conform to sections 275 and 276 of the Code of Criminal Procedure. Thedemurrer was sustained by the county sessions, without any grounds being stated or opinion rendered. It may be assumed that both the grounds relied upon by the defendants were sustained, neither are tenable. Sections 275 and 276 of the Code of Criminal Procedure require that the indictment shall contain the title of the action, specifying the name of the court and the names of the parties, and a plain and concise statement of the act constituting the crime. All these requirements are covered. The act constituting the crime charged was the forcible entry, by the use of force and violence, the dwelling-house of Lucius M. Goss. Section 284 of the Code of Criminal Procedure has defined the form and the sufficiency of an indictment. The old requirements of common-law pleading are by the Code expressly abandoned, and those of section 284 substituted. The authorities cited by the counsel for respondent do not apply to the present condition of things. The Code was enacted purposely to get rid of the burden of such authorities, and to simplify the forms and manner of bringing a party into court; so that now an indictment is sufficient which charges the crime plainly and concisely, and states it with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case. It has been already held that an indictment is good if it follows the language of the statute defining the crime. People v. Kelly, 3 N. Y. Crim. R. 272. It is good if it contains sufficient averment to inform defendant of the nature of the accusation against him to prepare his defense, and to admit of the record as a bar to a second prosecution for the same offense. People v. Martin, 2 N. Y. Crim. R. 51; People v. Rowe, 3 N. Y. Crim. R. 160. The chief objection made by respondent’s counsel lies in the omission of the pleader to specify the particular acts or means made use of by defendant which constituted the force or violence used; but the statute says, if he used any force to gain an entry, he is guilty. Can the court undertake to weigh or measure, as a matter of law, what particular acts of force were intended? Must it not, in each case, be a question of fact, to go to the jury, whether such force or violence' was used in a given case as was contemplated by the statute? The statute defining the crime of burglary declares the crime to consist of the breaking and entering the dwelling or other house of another, with intent to commit some crime therein. It has never been held that it was