Opinion
July 25, 1913.
Hersey Egginton, Assistant District Attorney [ James C. Cropsey, District Attorney, and Edward A. Freshman, Assistant District Attorney, with him on the brief], for the appellant.
Henry D. Levy, for the respondent.
Section 970 of the Penal Law provides that a person who is owner, agent or superintendent of a place, or of any device or apparatus for gambling, or who hires or allows to be used a room, table, establishment or apparatus for such a purpose, is a common gambler.
Section 275 of the Code of Criminal Procedure provides that the indictment must contain: "1. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; 2. A plain and concise statement of the act constituting the crime, without unnecessary repetition." And section 276 requires the indictment to be substantially in the form therein recited.
The learned court sustained the demurrer upon the sole ground that the indictment did not, in either of its counts, specify the place where the alleged crime or crimes were committed. It is the rule that, in addition to charging the crime, the indictment must contain a plain and concise statement of the act constituting the crime. The rule is salutary because, in the first place, the defendant is enabled to prepare his defense, and, second, because a second indictment for the same offense may be avoided. ( People v. Corbalis, 178 N.Y. 516.) The demurrer was sustained in the Corbalis Case ( supra) because it did not allege any act constituting the crime, and it cannot be regarded, therefore, as an authority which would justify the decision.
The indictment in the case at bar sufficiently charges the defendant with the crime of being a common gambler under the provisions of section 970 of the Penal Law, and is not demurrable under the provisions of sections 275 and 276 of the Code of Criminal Procedure. ( People v. Trainor, 57 App. Div. 422; People v. Cavanagh, 157 id. 224.)
If it is true that there is any real doubt as to the particular place where it is charged the offense was committed, the remedy of the respondent was by motion for a bill of particulars. ( Tilton v. Beecher, 59 N.Y. 176.)
I think the acts charged in the indictment in reality constitute but one crime, viz., that of being a common gambler under the provisions of section 970 of the Penal Law; but assuming that they constitute different crimes, they relate to the same thing in the same indictment, and such a pleading is permissible. (Code Crim. Proc. § 279; People v. Emerson, 53 Hun, 437.)
It is settled that if one of several counts in an indictment is good, that is sufficient to sustain a conviction under a general verdict of guilty. ( People v. Dimick, 107 N.Y. 13, 30; Phelps v. People, 72 id. 365; Pontius v. People, 82 id. 339; People v. Willett, 102 id. 251.)
It follows that the judgment and order of the County Court of Kings county must be reversed.
JENKS, P.J., BURR, CARR and PUTNAM, JJ., concurred.
Judgment and order of the County Court of Kings county reversed and demurrer overruled.