People v. Farrell — 28 N.Y. St. Rep. 43

Majority

p. 43

The People, App’lts, v. John Farrell, Resp’t.

(Supreme Court, General Term, Third Department,

Filed December 11, 1889.)

Headnote

Forcible entry and detainer—Indictment.

An indictment charging that defendant with force and arms unlawfully-entered a dwelling house named and used • force and violence in entering therein is sufficient; it is not necessary to specify the particular acts or means which constituted such force or violence.

Appeal from a judgment of the court of sessions of Clinton county, sustaining demurrer to an indictment under § 465 of the Penal Code.

Wilmer H. Dunn, district attorney, for app’lt; Royal Corbin, for resp’t.

By § 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 possession 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 §§ 275 and 276 of the Code of Criminal Procedure. The demurrer was sustained by the court of sessions, without any grounds being stated or opinion rendered. It may be assumed that both the grounds relied upon by the defendant 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 282 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 § 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 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. 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. Cr. Rep., 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. Cr. Rep., 51 ; People v. Bowe, 3 id., 160 .

The chief objection made by the 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. Oan 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 question of fact to go to the jury whether such force or violence was used in a given case as was contemp

p. 45

lated 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 necessary in the indictment charging the crime that it should specify the means used by the burglar to effect the entrance, or what particular property he intended to take when he got in. The statute is satisfied if it charges that he, with criminal intent, broke and entered the premises. How and by what means he broke and entered is a matter of evidence.

In the case under consideration the crime is sufficiently charged within the authorities of People v. West, 44 Hun, 162 ; 7 N. Y. State Rep., 843; S. C., 106 N. Y., 293 ; 8 N. Y. State Rep., 713 ; People v. King, 110 N. Y., 418 ; 18 N. Y. State Rep., 353. The particular force used is matter of proof, evidence of the crime. If he used any force to gain the entrance against the party in possession, his case conies within the provisions of the statute.

The judgment should be reversed, the demurrer overruled, and the case remitted to the sessions for further proceeding.

Order to be settled by Justice Fish.

Learned, P. J., and Putnam, J., concur.