
    The People of the State of New York, App’lts, v. John Klock, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed April, 1888.)
    
    1. Criminas law — Pleading—Indictment for keeping place where ANIMALS ARE FOUGHT—PENAL CODE, § 665, CODE CRIM. PRO., § 275.
    The indictment accused the defendant as follows: “ The said John Klock on the 15th day of March, 1886, at the town of Preble in this county, with force and arms * * * did keep and maintain a certain common, ill-governed and disorderly house, and in the said house for their own lucre and profit, certain evil and ill-disposed persons of ill name and fame and of dishonest conversation to frequent and come together then, and the said other days and times there unlawfully and willfully, being the proprietor and occupant of said house did then and there keep and use said house and a room and apartment therein and did then and there willfully permit the same to be wed and occupied for baiting and fighting certain birds, to wit, game cocks,” etc. Held, that the facts stated in the indictment were sufficient to bring the offense under Penal Code, § 665. That the language of the indictment answered the requirements of Code Crim. Pro., § 275.
    2. Same —Penal Code, § 322—What facts not sufficient to charge ONE WITH KEEPING DISORDERLY HOUSE.
    
      Held, that the indictment did not contain facts sufficient to charge a crime under Penal Code, § 322, which forbids the keeping of disorderly houses.
    3. Same—Public nuisuance—Disorderly person—What facts sufficient to charge—Penal Code, § 385; Code Crim. Pro., § 899.
    
      Held, that the indictment failed to charge an offense under Penal Code, § 385, which forbids a public nuisance and that it did not charge that defendant was a disorderly person within Code Crim. Pro., § 899.
    
      4. Same—Construction of pleadings—Code Grim. Pro., § 282.
    Under Code Crim. Pro., § 282, it is the duty of the court to ascertain the fair sense and acceptation of the language used and to disregard captious objections in determining the meaning of the allegations in an indictment and where two permissible constructions may be had it is the duty of the court to adopt the one sustaining the proceedings.
    Appeal from an. order and judgment of the court of sessions of the county of Cortland, sustaining the demurrer of the defendant to an indictment found against him in the oyer and terminer and sent to said court of sessions for trial.
    Among the grounds assigned in the demurrer are the following:
    
      First. “ That the indictment does not conform substantially to the requirements of sections 275 and 276 of the Code of Criminal Procedure.”
    
      Second. “ That more than one crime is charged in the indictment within the meaning of sections 278 and 279 of the Code of Criminal Procedure.”
    
      Third. ‘ That the facts stated do not constitute a crime.”
    The indictment is as follows:
    
      “Indictment for keeping a place where animals are fought.”
    “The grand jury of the county of Cortland, by this indictment, accuses John Klock of the crime of keeping a place where animals are fought, committed as follows: The said John Klock on the 15th day of March, 1886, at the town of Preble, in this county, with force and arms, at the town aforesaid, in 'the county aforesaid, did keep and maintain a certain common, ill-governed and disorderly house, and in the said house, for their own lucre and profit, certain evil and ill-disposed persons of ill name and fame, and of dishonest conversation, to frequent and come together then and the said other days and times there unlawfully and willfully, being the proprietor and occupant of said house, did then and there keep and use said house and a room and apartment therein, and did then and there willfully permit the same to be used and occupied for baiting and fighting certain birds, to wit: game cocks, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity.”
    
      H. L. Bronson, for app’lts; A. P. Smith, for resp't.
   Hardin, P. J.

Section 275 of the Code of Criminal Procedure provides that an indictment must contain “ a plain and concise statement of the act constituting the crime, without unnecessary repetition.” It need not follow the very words of the statute. It is sufficient that the facts constituting the crime are well stated. Frazer v. The People, 54 Barb., 306; Tully v. The People, 67 N. Y., 15, § 283 of the Code of Criminal Procedure.

Section 278 of the Code of Criminal Procedure provides: “ The indictment must charge but one crime, and in one form except as in the next section. ”

Section 279 of the Code of Criminal Procedure provides: ■“The crime may be charged in separate counts to have been committed in a different manner, or by different means * * * .”

Section 665 of the Penal Code defines what acts committed or permitted shall constitute a misdemeanor.

The section is as follows- “A person who keeps or uses, or is in any way connected with, or interested in the manageagement of, or receives money for the admission of any per son to a house, apartment, pit or place kept or used for baiting or fighting any bird or animal, and any owner or occupant of a house, apartment, pit, or place, who willfully procures or permits the same to be used or occupied for such baiting or fighting, is guilty of a misdemeanor.”

We think the facts stated in the indictment are sufficient to bring the offense under the section just quoted, and that the language of the indictment answers the requirements of subdivision 2 of section 275, by containing, viz; “A plain and concise statement of the act constituting the crime, without unnecessary repetition.”

Section 282 of the Code of Criminal Procedure lays down a rule which must be applied in construing the language of the indictment before us.

That section declares, viz: “The words used in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.”

Under that section it is the duty of the court to ascertain the fair sense and acceptation of the language used, and to disregard captious objections in determining the meaning of the allegations in an indictment, and where two permissible constructions may be had, it is the duty of the court to adopt the one sustaining the proceedings. Rex v. Stevens, 5 East, 244; Phelps v. The People, 6 Hun, 401; Phelps v. The People, 72 N Y., 334.

We think the indictment does not contain facts sufficient to charge a crime under section 323 of the Penal Code, which section forbids the keeping of disorderly houses.

We think the indictment fails to charge an offense under section 385 of the Penal Code, which section forbids a public nuisance. We are also of the opinion that the indictment does not charge that the defendant is a disorderly person within the language of section 899 of the Code of Criminal Procure.

The indictment charges the defendant with having kept and maintained a house, and being the proprietor and occupant of a house, he “ did then and there keep and use said house and a room and apartment therein, and did then and there willfully permit the same to be used and occupied for baiting and fighting certain birds, to wit: game cocks.

Being the owner of a house, and having permitted the same to be used and occupied for baiting and fighting any bird or animal, he was guilty of the offense charged, in that he had violated section 665 of the Penal Code.

The words “birds or animals,” used in section 665, must be held to embrace game cocks mentioned in the indictment.

By section 669 of the Penal Code the word “animal” is defined to include every living creature except the human race.

We think the court of sessions fell into an error in not sustaining the indictment. The demurrer should have been overruled.

We must reverse the order and judgment of the court of sessions, which sustained the demurrer, and direct that court to enter an order overruling the demurrer and to proceed.

Order and judgment of the court of sessions of Cortland county reversed and demurrer overruled. Proceedings remitted to that court with instructions to proceed.

Follett, J., and Martin J., concur.  