The People of the State of New York, Appellant, v. Samuel Weiss, Respondent

The People of the State of New York, Appellant, v. Samuel Weiss, Respondent. Second Department, July 25, 1913. Crime — common gambler—Penal Law, section 970 — indictment — demurrer — bill of particulars — acts charged in indictment constituting different crimes — conviction under general verdict where only one of several counts in indictment sufficient. Indictment examined, and held, to sufficiently charge the defendant with the crime of being a common gambler, under the provisions of section 970 of the Penal Law, and not to be demurrable under the provisions of sections 275 and 276 of the Code of Criminal Procedure. If there is any real doubt as to the particular place where a crime is charged to have been committed, the remedy of the defendant is by motion for bill of particulars. Although acts charged in an indictment constitute different crimes, if they relate to the same thing, the indictment is sufficient. If one of several counts in an indictment is good, a conviction under a general verdict of guilty may be sustained. Appeal by the plaintiff, The People of the State of New York, from a judgment and order of the County Court of Kings county, entered in the office of the clerk of said county on the 30th day of April, 1913, sustaining defendant’s demurrer to an indictment charging the respondent with maintaining and suffering a place to be used for gambling, and with being a common gambler. The indictment contains three counts. The first charges the defendant with “ the crime of keeping a room to be Used for gambling, committed as follows: The said Samuel Weiss on or about December 1st, 1912, and thence continually to the day of the taking of this inquisition, at the Borough of Brooklyn of the City of New York, in the County of Kings, unlawfully did keep a certain room in a certain building there situate, to be used for gambling.” The second count charges the defendant with “ the crime of allowing a room, establishment, table and apparatus to be used for gambling purposes, committed as follows: The said Samuel Weiss, on the day and in the year aforesaid, and thence continually to the day of the taking of this inquisition, at the County of Kings aforesaid, having the care, custody and supervision of, and authority and control over the use of a certain room in a certain building there situate, and a certain gambling table and establishment, and divers cards, chips, dice, implements, paraphernalia, devices and apparatus, then therein, a more particular description whereof is to the G-rand Jury aforesaid unknown, and cannot now be given, the same being suitable for gambling purposes, feloniously did allow the same to be used for gambling purposes, to wit, for the purpose of .conducting and allowing to be conducted in the said room, with the said gambling table, establishment, cards, chips, dice, implements, paraphernalia, devices and apparatus a certain gambling commonly known as poker, where money and property were dependent upon the result, a more particular description of which said gambling game is to the Grand Jury aforesaid unknown, and cannot now be given, and for other gambling purposes, a more particular description whereof is to the said Grand Jury likewise unknown and cannot now be given.” The third count charges the defendant with “ being a common gambler, committed as follows: The said Samuel Weiss, on the day and in the year aforesaid, and thence continually to the day of the taking of this inquisition, at the County of Kings, having the care, custody and supervision of, and authority and control over the use of a certain room in a certain building there situate and a certain gambling table and establishment, and divers cards, chips, dice, implements, paraphernalia, devices and apparatus then therein, a more particular description whereof is to the Grand Jury aforesaid unknown and cannot now be given, the same being suitable for gambling purposes, feloniously did allow the same to be used for gambling purposes, to wit, for the purpose of conducting and of allowing to be- conducted in the said room, with the said gambling table, establishment, cards, chips, dice, implements, paraphernalia, devices and apparatus a certain gambling game commonly known as poker, where money and property were dependent upon the result, a more particular description of which said gambling game is to the Grand Jury aforesaid unknown and cannot now be given, and for other gambling purposes, a more particular description whereof is to the said Grand Jury likewise unknown and cannot now be given, and did then and there and thereby become and yet is a common gambler.” The grounds of the demurrer were: “I. That the indictment does not conform substantially to the requirements of sections 275 and 276 of the Code of Criminal Procedure of the State of New York. “II. That the facts as stated therein do not constitute a crime.” 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. [MAJORITY — Rich, J.:] Rich, J.: 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.