Summary
In People v. Corballis, 86 App. Div. 531, [83 N.Y. Supp. 782], the indictment simply charged that the defendants did "engage, aid, assist and abet in pool-selling and selling pools upon the result of a trial and contest of speed and power of endurance of beasts, to wit: horses" on a specified day.
Summary of this case from People v. PlathOpinion
July Term, 1903.
J. Addison Young, for the appellants.
Robert M. Moore, for the respondents Corbalis and others.
David H. Hunt, for the respondent Smith.
The demurrants seek to sustain the judgment appealed from upon the ground that the indictment in question does not comply with the rule that it must first state the crime and second the acts constituting the crime. Upon this question is cited the case of People v. Dumar ( 106 N.Y. 502) and the doctrine is reiterated in People v. Klipfel (160 id. 371); People v. Peckens (153 id. 576); People v. Helmer (154 id. 596, 600); People v. Willis (158 id. 392, 396). The indictment in its 1st paragraph clearly charges the crime for it makes the charge in the words of the statute, and this has many times been held sufficient. ( Phelps v. People, 72 N.Y. 334; People v. West, 106 id. 293; People v. Herlihy, 66 App. Div. 534; affd. on opinion below, 170 N.Y. 584.)
The question then comes to the acts constituting the crime, and reference to the 2d paragraph of the indictment shows that it is alleged that the defendants on a given day did feloniously outside the race course authorized by law, "engage * * * in pool selling and selling pools upon the result of a trial and contest of speed and power of endurance of" horses on the day named. This we think is a sufficient statement of the acts constituting the crime. In the Herlihy Case ( supra) a demurrer was interposed to the indictment which charged the defendant with failure to suppress houses of ill-fame on the ground that the statement of facts constituting the crime was not sufficient. The Appellate Division, first department, said the meaning of the words "houses of ill-fame" is well understood, and these words of themselves, irrespective of other description, are sufficient in an indictment charging an officer with omission of duty in respect thereto; where a statute defines a crime, it is sufficient in respect thereto. The opinion further states: "While I am of the opinion that the words 'houses of ill-fame' would have been sufficient without any further description, it certainly does not take from the sufficiency of the statement of the acts constituting the crime to add thereto a statement of acts which constitute the houses of the character described." The indictment was upheld and the judgment affirmed in the Court of Appeals upon the opinion of Mr. Justice McLAUGHLIN. The Century Dictionary defines the term "engage" as to "take part; as, to engage in conversation." The term "pool selling and selling pools" can have no equivocal meaning, and has such a place in the language as to define the act with as great clearness as is true of houses of ill-fame. The word "pool-selling" is not only used in section 351 of the Penal Code, but is employed in the 9th section of article 1 of the Constitution, where it is provided that no "pool-selling, book-making or any other kind of gambling" shall "be authorized or allowed."
It is clear, therefore, that sufficient facts are stated to constitute the crime. A statement of more than this indictment contains would lead to the pleading of evidence; that this is unnecessary has long been established, both in criminal and civil procedure.
The respondents contend as well that the indictment is not sufficient to enable them properly to prepare for trial, and suggest that if this indictment was not challenged by way of a demurrer, many sets of facts might be put in evidence by the prosecution, such as that the defendants contributed the capital for the enterprise; that defendants formed a corporation for the purpose; that they employed agents through whom they committed the act; that defendants, or one of them, kept watch to prevent those actually engaged from being apprehended; that the defendants gave money to another to carry on the enterprise, and that they acted as solicitors for the principals. It must be considered as now settled that if these defendants believe that they are insufficiently advised as to the particular facts that will be proven to make out against them a case under the statute, their remedy is by a bill of particulars. Judge CULLEN, speaking for the Court of Appeals in the recent case of People v. Stedeker ( 175 N.Y. 61), says that it is unnecessary that an indictment specify the particular house or building in New York city in which the defendants were charged with keeping and occupying a room for the purposes forbidden by section 351 of the Penal Code, and uses this language: "If there were any question as to the particular place where it is charged that the offense had been committed by which the appellants could be in any way misled or prejudiced in their defense, the remedy was by motion for a bill of particulars." (Citing Tilton v. Beecher, 59 N.Y. 176.) Wharton's Criminal Pleading and Practice (8th ed. § 702) announces a similar doctrine: "Wherever the indictment is so general as to give the defendant inadequate notice of the charge he is expected to meet, the court, on his application, will require the prosecution to furnish him with a bill of particulars of the evidence intended to be relied on."
The claim that the indictment is invalid for duplicity cannot be sustained. Where an offense may be committed by doing one or more of several things the indictment may, in a single count, allege them together, and conviction may be had on proof of commission of any one of the things without proof of the commission of the others. ( Bork v. People, 91 N.Y. 5; People v. Harris, 123 id. 70.) Here the indictment charges that the defendants did "engage, aid, assist and abet in pool selling and selling pools." In the Herlihy Case ( supra) it was charged that defendant, between the 22d day of September, 1899, and the 18th day of November, 1900, allowed 109 houses of prostitution to flourish, and yet it was held that the indictment charged one offense. This court has recently had occasion to pass upon a similar question in People v. Kane ( 43 App. Div. 472). The court said, by Mr. Justice JENKS in the court below: "The fact that the statute is expressed in disjunctives, while the indictment employs conjunctives — violating and evading and committing a fraud — is not fatal. Aside from the grave question whether a statutory misdemeanor can be charged in the disjunctive, it is clear that a charge in the form followed is well made. The pleader may allege all breaches in a single count, employing 'and' where the statute reads 'or,' and there is no duplicity, and the crime will be established upon proof of any one of the infractions. (1 Bish. New Cr. Proc. §§ 434, 586; Whart. Cr. Pl. Pr. § 228; Bork v. People, 91 N.Y. 5; People v. Davis, 56 id. 95; People v. Wicks, 11 App. Div. 539; People v. Smith, 5 N.Y. Supp. 22.)"
It follows, therefore, that the indictment is good, and that the judgment appealed from should be reversed.
GOODRICH, P.J., BARTLETT and JENKS, JJ., concurred.
Order allowing demurrer to indictment reversed and demurrer disallowed.