
    The People, Resp’ts, v. Hugh Quinn, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    Bottles—Indictment—Sufficiency.
    An indictment under the Bottling Act charged in,-three separate counts, in the language of the statute, that the A.Liebler Bottling Co. 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 defendant did unlawfully buy, take, traffic in and dispose of three certain bottles which and each 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 there was then and there the marks and devices of said corporation. Held, that the indictment was .nopso indefinite and uncertain as to justify the granting of a motion to dismiss; that the crime being charged in the language of the; statute the indictment was sufficient.
    Appeal from judgment of the court of general sessions convicting the appellant of a misdemeanor.
    
      A. W. Tenney, for app’lt; W. T. Jerome, for resp’ts.
   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 Co., 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 statute.

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 th,e Cannon case, 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 § 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 under 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 §§• 275, 276.’’

A reference to §§ 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 separaté counts, in the language of the statute, stated that the. Liebler Bottling Co. 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 each 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 there was then and there 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; 20 St. Rep., 112, the court by Ruger, Oh. J., at p. 574, says:

“ It is generally sufficient to state an offense in language used in the statute defining the crime. As said by Judge Folger, 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 cornmitted is necessary to be stated than that contained in the statute itself Eckhardt v. People, 83 N. Y., 462.”

W e 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.

Yan Brunt, P. J., and Ingraham, J., concur.  