(78 Hun, 74.)

#### PEOPLE v. PILLION.

(Supreme Court, General Term, Third Department.

May 26, 1894.)

1. Information—Violation of Statute—Specifying Offense.

An information charging a person with the violation of a statute which sets forth the number of offenses, without specifying the offense, is insufficient.

2. Same—Following Language of Statute.

An information in the language of Pen. Code, § 41k, subd. 5, that defendant voted at a certain time and place without being qualified therefor, is insufficient, because it fails to state the facts which constitute the offense.

Appeal from court of sessions, Albany county.

Michael Pillion, alias Michael Finnerty, convicted of unlawful voting, appeals.

Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

J. Murray Downs, for appellant.

James W. Eaton, Dist. Atty., for the People.

PER CURIAM.

This is an appeal by the defendant from a judgment of conviction by the court of special sessions of the city of Albany, for a violation of section 41k of the Penal Code of the state of New York. The evidence in the case is not brought before us on this appeal. It appears from the record that the defendant had been brought before one of the police magistrates of the city of Albany, and the case against him was sent to the court of special sessions for trial, and that upon such trial, and before the taking of any testimony, a motion was made to dismiss the information, and to discharge the defendant, for the reason “that the information did not state facts sufficient to constitute a crime.” This motion was denied. A motion was then made to dismiss the information, and for the discharge of the defendant, for the reason “that the court did not have jurisdiction of the of-fence, the same being an infamous crime,” which motion was also denied, and to which denials exceptions were taken by the defendant. The information against the defendant is as follow's:

> “City and County of Albany—ss.: Michael F. Cantwell, being duly sworn, deposes and says that he resides in No. 876 Broadway, Albany; that one John Doe, alias Michael Finnerty, at the city of Albany, in the county of Albany, aforesaid, on the 10th day of April, 1894, did wrongfully, unlawfully, wickedly, willfully, maliciously, and knowingly violate section 41k of the Penal Code of the state of New York, as amended, in that he did, at the charter election being held in and for said city of Albany, that day vote at a polling place of the first district of the Eighth ward of said city under the name of Michael Finnerty, of 866 Broadway, without being qualified therefor.

> “Michael F. Cantwell.

> “Taken, subscribed, and sworn to before me this 10th day of April, 1894.

> “Peter A. Stephens, Police Justice, Justice of the Peace.”

We think the court of special sessions was in error, in denying the motion to dismiss the information and discharge the defendant.

*268An information in the court of special sessions performs the same-office that an. indictment does in courts of record; and while, as-has been heretofore held by this court, such informations—

> “Are not expected to be drawn with the technical accuracy that an indictment should be, yet, * * * taking the place, as they do, of indictments in superior courts, they should state with sufficient accuracy the crime charged, that the defendant may know the exact offense which it is claimed he has-committed.” People v. Olmsted, 74 Hun, 323, 26 N. Y. Supp. 818.

It has been held that:

> “An indictment for a statutory offense, especially when the offense is a misdemeanor, charging the facts constituting the crime in the words of the-statute, and containing averments as to time, place, person, and other circumstances to identify the particular transaction, is good, as a pleading, and justifies putting the defendant on trial.” People v. West, 106 N. Y. 293, 12 N. E. 610.

It is also held that an indictment must charge the crime, and also state the act constituting the crime. People v. Dumar, 106 N. Y. 602-609,13 N. E. 325.

It is said that:

> “The principal reason requiring a specific statement of the act is the right which the accused has to be informed of the precise accusation which he is-required to defend.” People v. Stark, 136 N. Y. 538-541, 32 N. E. 1046.

These requirements are essential. However awkwardly or in-artificially done, if the information charges a crime known to the-law, and states acts done by the accused which constitute such crime, it will be held sufficient. The information in this case does-not comply with either of the requirements specified, and seems to have been drawn by one utterly unacquainted with the principles of pleading. The crime charged is that John Doe, alias-Michael Finnerty, did wrongfully, etc., “violate section 41k of the Penal Code of the state of New York, as amended.” At ilie time set forth in the information, section 41k, Pen. Code, consisted of 18 subdivisions, and many of such subdivisions specified several distinct and separate crimes. The charge should be for the commission of some distinct and specific crime. Charging a person with the violation of a given section of the Code, which section sets forth a number of offenses, is not sufficient. After attempting, in the manner indicated, to charge the commission of a crime,, the information then proceeds to set forth a violation of the fifth subdivision of section 41k, which subdivision defines and sets forth a distinct and separate crime, which is the subject of a distinct and separate charge. An allegation in the words of such subdivision is not the statement of an act which constitutes the crime charged, but is, in itself, the charging of a specific crime, which must be supplemented by a statement or specification of acts done which constitute such crime. The charge, or rather attempted charge, of a violation of said subdivision, is insufficiently made, in so far as it attempts to charge a crime, and nowhere in the information are there any acts or facts constituting the offense defined in subdivision 5 alleged.

*269There are other, and still graver, reasons for reversing the judgment of conviction in this case, which, however, we do not think the public interests require to be stated at this time, the reasons •already given being sufficient to dispose of the case. The court of special sessions had power and authority to pass upon the sufficiency of the information, and, the information being insufficient to cause the defendant to be placed upon trial, the motion to dismiss and discharge the defendant should have been granted,—“For "it seemeth to me unreasonable to send a prisoner, and not, withal, to signify the crimes laid against him.” The judgment of conviction is reversed, and the defendant discharged. All concur.