Opinion
October 24, 1940.
Appeal from an order dismissing a writ of habeas corpus. Petitioner, indicted and tried with others for conspiracy to engage in policy playing in violation of sections 970 and 974 of the Penal Law, was acquitted. Petitioner was also indicted for violation of sections 970 and 974 of the Penal Law, being charged with such policy playing. He now pleads double jeopardy and seeks release through this habeas corpus proceeding. The crime of conspiring to operate a policy game is a separate and distinct crime from the crime of policy playing. ( People v. Tavormina, 257 N.Y. 84.) The former is not a part of the latter and an acquittal of the former charge is not a bar to a prosecution of the latter. ( People v. Faden, 271 N.Y. 435; Bens v. United States, 266 Fed. 152; State v. Sias, 17 N.H. 558.) Under the conspiracy indictment petitioner could not have been convicted on proof of the facts contained in the second indictment and, therefore, an acquittal on the first is not a bar to the second. ( Commonwealth v. Roby, 12 Pick. [Mass.] 496; Bens v. United States, supra; People v. Rodgers, 184 App. Div. 461, at p. 463; affd., 226 N.Y. 671.) Order affirmed, without costs. Lazansky, P.J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.