I must dissent from the prevailing view of my associates. In my opinion the indictment before us is fatally defective in that it does not apprise the defendant of the act constituting the crime with the commission of which he is charged. Section 275 of the Code of Criminal- Procedure provides that the indictment must contain “ a plain and concise statement of the act constituting the crime * * *.” I think the defendant
was entitled to be informed by the indictment of the act upon which the People will rely as constituting the offense, that he may understand it and be prepared to meet it and establish his innocence, if he be innocent. I think the right is a substantial and vital one to the defendant, not to be denied him because of uncertain relief through a bill of particulars. (People v. Corbalis, 178 N. Y. 516.) The indictment here charges no act constituting the crime, but, at most, the conclusion of the pleader.
I think, therefore,, that the Court of General Sessions very properly held that this indictment did not meet the requirements of section 275 of the Code of Criminal Procedure, and I, therefore, must dissent from the prevailing opinion in this court and vote to affirm the order of the General Sessions sustaining defendant’s demurrer to the indictment upon the grounds stated.
Order reversed and demurrer overruled. Settle order on notice.