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; Code of Crim. Pro., § 283.)
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 provided.” 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 management of, or receives money for the admission of any person to a house, apartment, pit *277■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 permissable constructions may be had it is ■the duty of the court to adopt the one sustaining the proceedings. (Rex v. Stevens, 5 East, 344; Phelps v. The People, 6 Hun, 401; S. C., 72 N. Y., 334.)
We think the indictment does not contain facts sufficient to charge a crime under section 322 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 Procedure.
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 *278665 of the Penal Code. The words “ bird or animal,” used in section 665, must be beld to embrace game cocks mentioned in tbe indictment. By section 669 of tbe Penal Code tbe word “ animal”' is defined to include every bving creature except tbe human race. ~We tbink tbe Court of Sessions fell into an error in not sustaining tbe indictment. The demurrer should have been overruled. "We must reverse tbe order and judgment of tbe Court of Sessions which sustained tbe demurrer, and direct that court to enter an order overruling tbe demurrer and to proceed.
Follett and Martin, JTL, concurred.Order and judgment of -the Court of Sessions of Cortland county reversed and demurrer overmled. Proceedings remitted to that, court with instructions to proceed.