
    Supreme Court-General Term-First Department.
    
      July, 1889.
    PEOPLE v. EMERSON 
    
    Indictment.—Duplicity.-—Penal Code, §§ 278, 279, 343, 344.—Precise Time oe Commission of Offense Immaterial. -
    An indictment containing several counts based upon the same transaction, and charging: First, keeping a room to be used for gambling purposes; Second, selling lottery policies; and, Third, selling papers and writings in the nature of bets and wagers upon the drawing of numbers of a lottery, is not demurrable on the ground that more than one crime is charged therein within the meaning of sections 278 and 379 of the Penal Code, forbidding the charging of more than one crime in one form in an indictment, except that the crime may be charged in different counts to have been committed in a different manner or means; but where the acts complained of may constitute different crimes, allowing such crimes to be charged in separate counts.
    
      The “ same transaction” which may be charged in separate count in different ways, does not mean the same acts, but the same series of acts, which, when completed, culminate in the crime or crimes for which the indictment is found.
    While it is a well-settled rule that the time and place of the commission of a crime should be stated with certainty in the indictment, it is not necessary to prove them as stated, unless they are necessary ingredients in the offense.
    Appeal by the defendant Herman J. Emerson from a judgment of the Court of General Sessions of Hew York, Hon. Fkederick Smyth, presiding, entered Hovember 14, 1888, upon the conviction of the defendant, entered upon a verdict of guilty upon three counts of an indictment, namely, keeping a room for gambling, for selling lottery policies, and for selling papers and writings in the nature of bets and wagers upon the drawing of numbers of a lottery.
    The counts of the indictment upon which the defendant was tried and found guilty are as follows:
    “ First Count. The Grand jury of the City and County of Hew York, by this indictment, accuse Herman J. Emerson and Philip Goss of the crime of keeping a room to be used for gambling purposes, committed as follows:
    “ The said Herman J. Emerson and Philip Goss, both late of the Second Ward of the .City of Hew York in the County of Hew York aforesaid, on the eighteenth day of September, in the year of our Lord one thousand eight hundred and eighty-eight, at the ward, city and county aforesaid, with force and arms, unlawfully did keep a certain room in a certain building, there situate, to be used for gambling purposes, to wit: to be used for the purpose of therein conducting a certain gambling game, commonly called £ policy,’ where money and property were dependent upon the result, against the form of the statute,” etc. etc.
    “ Third Count. And the Grand Jury aforesaid, by this indictment, further accuse the said Herman J. Emerson and Philip Goss of the crime of selling what are commonly known as lottery policies, committed as follows: The said Herman J. Emerson and Philip Goss, both late of the ward, city and county aforesaid, afterward to wit: on the day and in the year aforesaid, at the ward, city and county aforesaid, with force and arms, feloniously did sell to one James E. Bedell and divers other persons to the Grand Jury aforesaid unknown divers papers, instruments and writings, commonly called lottery policies (a more particular description of which said instruments and writings, so commonly called lottery policies, is to the Grand Jury aforesaid unknown, and cannot now be given), against the form of the statute,” etc. etc.
    “Fourth Count. And the Grand Jury aforesaid, by this indictment, further accuse the said Herman J. Emerson and Philip Goss of the crime of selling papers and writings in the nature of bets and wagers upon the drawn numbers of a lottery, committed as follows -. The said Herman J. Emerson and Philip Goss, late of the ward, city and county aforesaid, afterward to wit: on the day and in the year aforesaid, at the ward, city and county aforesaid, with force and arms, feloniously did sell to one James E. Bedell and divers other persons to the Grand Jury aforesaid said unknown, divers papers and writings in the nature of bets and wagers upon the drawn numbers of certain lottery, the same being a scheme for the distribution of property by chance among persons who had paid or agreed to pay a valuable consideration for such chance (a more particular description of which said lottery is to the Grand Jury aforesaid unknown, and cannot now be given), and a more particular description of which said papers and writings is to the Grand Jury aforesaid unknown, and cannot now be given), against the form of the statute,” etc. etc.
    The questions discussed by the General Term being purely legal ones, the facts need not be given.
    
      Howe c§ Hummel ( Wm. F. Howe, of counsel), for defendant, appellant.
    
      I. Defendant was convicted of the violation of two sections of -the Penal Code, to wit, sections 343 and 344. So that the defendant was convicted of one misdemeanor and two felonies charged in one indictment noon one trial and by one verdict.
    
      
    
    Recorder Smyth, who t trial, had in his charge directed the jury that they had the right to render a verdict upon any of the three counts charging these offenses.
    They jury, however, found the defendant guilty of each of the counts submitted to them, so that the verdict as recorded found^ie defendant guilty of three distinct offenses: 1. Kq§|ipgfJij«t5m for gambling; 2. Selling lottery policies ; writings in the nature of a bet or wager upon drawn numbers of a lotteiy.
    Upon the conviction, the defendant was sentenced as for a felony; his sentence being his imprisonment in the Penitentiary for one year and to pay a fine of one thousand dollars, while if he had been sentenced for the misdemeanor the fine in addition to the imprisonment could not have exceeded $500. So that this case differs from any reported case, where, under a conviction, the sentence imposed was only such as could be imposed for the lowest grade of the offense.
    Ueither did the Recorder treat this verdict as a general verdict which would be construed as being a conviction upon the first good count of the indictment for misdemeanor.
    Upon the trial the court permitted the District Attorney, against objection and exception, to prove no less than 150' distinct and separate offenses in the sale of lottery policies to the witness Bedell, from the month of January, 1888, up to the 18th day of September, 1888, although in the indictment the only charge was that the defendant sold lottery policies on the 18tli day of September, and that he kept a gambling room on that day.
    II. The court erred in receiving evidence of transactions from the first day of January, 1888, to the eighteenth day of September, 1888.
    The indictment charged the defendant with having sold lottery policies to Bedell on September 18, 1888. On the trial the court, instead of limiting the proof to the transactions on one particular day, permitted the district attorney to prove, against defendant’s objection, specific selling of lottery policies on nearly every day from January 1, 1888, to September 18, 1888.
    III. The verdict of guilty on three counts cannot be sustained.
    These counts differed from each other in respect to the grade of the offense. ■ So that the defendant was by the verdict of the jury convicted on one trial of two felonies and a misdemeanor.
    Ho such verdict is authorized by the Code of Criminal Procedure. See sections 437, 444, and 445.
    Had a general verdict of guilty been rendered, it would have been held that the defendant was properly convicted of the first good count of the indictment; but the trouble with this verdict is that under it the defendant is convicted of two counts, which are inconsistent with each other.
    The statutory definition of the crime charged in the second and third counts makes a distinction between selling what are commonly called lottery policies and selling a paper writing or document in the nature of a bet or wager upon the drawn numbers of a lottery ; and, while the third count charges the selling of lottery policies, and the fourth -count selling bets or wagers upon the drawn numbers of a lottery, the evidence to sustain one of these offenses must necessarily be different than the evidence required to sustain the other. The testimony in the case showed that the lottery policies were the selection of numbers which would thereafter be drawn, and necessarily went to sustain the third count of the indictment. To sustain the fourth count the evidence would have to show that lotteries had previously been drawn and that the paper sold-was in the nature of a bet and wager upon those drawn numbers. So that the jury in convicting the defendant of the third and fourth counts necessarily convicted him of two distinct offenses,, one not at all connected with the other.
    But the jury were charged that the defendant could be-convicted of but one of the counts of the indictment.
    The learned Becorder said : “ The defendant is charged in the first count of this indictment with a crime amounting-' to a misdemeanor, the lowest grade of crime known to the-law. In the third and fourth counts, which are the remaining counts to be submitted to you, the defendant is charged with the highest grade of crime known to the law,—to wit, a felony,—and, under this indictment, you have the right to-render a verdict upon any one of those three counts.”
    In another view, the verdict cannot be sustained. There-are plenty of cases in this State supporting the theory that an indictment may charge misdemeanors in different counts,, and that a conviction of the defendant on such an indictment would be good, but that only one sentence could be-imposed. People ex rel. Tweed v. Liscomb, 60 N. Y. 559.
    It will be seen that by a verdict of the jury, the court is placed in this awkward position; shall the defendant be sentenced on the first count of the indictment for misdemeanor,, or shall he be sentenced for the felonies ?
    It must be admitted that he could not be sentenced for all three convictions, notwithstanding the verdict of the jury. It must also be admitted that had these three-different offenses contained in the 1st, 3d, and 4th counts of the indictment been charged in separate indictments, the defendant could not have been tried on three indictments ' at the one time.
    Again, if he could not be tried on the three indictments at the one time, the offenses could not have been joined in the one indictment, for as was said in the Tweed case, the defendant would in that event be deprived of the proper number of peremptory challenges.
    Again, the defendant could not be convicted of three; crimes at once, even if contained in the same indictment, especially, when, as in this case, the proof to support one must necessarily be- different from that to support the other.
    The verdict of the jury should have been a verdict specifying of which count they found the defendant guilty, but in no event could the defendant be found guilty of more than one offense, not, as in this case, of three distinct offenses.
    The verdict was a violation of the provisions of the Code of Criminal Procedure.
    
      Jno. 12. Fellows, district attorney (Wm. T. Jerome, deputy assistant), for the people, respondents.
    
      
       See the opinion of Judge Lawrence in this case on an application, for stay of proceedings, 6 N. Y. Crim. Rep. 157.
    
   Van Brunt. P. J.

The indictment found against the defendant contained five counts. The second and fifth having been withdrawn from the consideration of the jury, it will not be necessary to consider them.

The first count was for keeping a room in a certain building in the city of Sew York to used for gambling purposes. The ' third was for selling lottery policies, and the fourth for selling papers or writings in the nature of bets and wagers upon the drawing of number's of a lottery.

Upon being arraigned on said indictment the defendant demurred thereto upon the ground that more than one crime is charged in the indictment within the meaning of sections 278 and 279 of the Code of Criminal Procedure.. This demurrer was overruled, and the first question presented upon this appeal is whether or not this demurrer was well taken. Sections 278 and 279 of the Code of Criminal Procedure are as follows:

Section 278. The indictment must charge but one crime and in one form except as in the next section provided.

Section 279. The crime may be charged in separate counts to have been committed in a different manner or by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.

In the case of Hawker v. People (75 N. Y. 487), it was objected upon behalf of the plaintiff in error that the indictment was fatally defective because it charged two distinct felonies, one under the first section and one under the third section of the statute.

The court say: “ This objection is not well founded. All the counts are under the same statute and relate to the same transactions. In such case it matters not that the. offense alleged to have been committed is charged in different ways in several counts for the purpose of meeting the evidence that may be adduced. And it matters not that the offenses charged in the different counts are of different grades and call for different punishments. People v. Rynders, 12 Wend. 425 ; People v. Baker, 3 Hill, 159; People v. Costello, 1 Den. 83; Taylor v. People, 12 Hun, 213; Regina v. Trueman, 8 Carr, & P. 727; Wharton Crim. Law, § 416. A count for burglary with an attempt to commit larceny. ... So burglary and larceny; rape and assault with intent to commit rape; larceny and receiving stolen goods; assault with intent to kill and a simple assault may be united, and it matters not that the offenses thus united call for different punishments.”

In People v. Baker there were three counts,—one for receiving stolen goods, and one for burglary, and one for grand larceny,—and the indictment was held good. So long as all the counts refer to the same transaction, as in this case, there can be no objection to the union of such counts in the same indictment. By the use of the words “ same transaction” the court does not mean, nor does the statute mean, the same acts; but the same series of acts which when completed culminate in the crime or crimes for which the indictment is found, is intended.

In the case at bar, the proof, that the defendant kept a room did not either prove him guilty of any offense or rend to do so, but the further proof that he did the acts charged in the third and fourth counts of the indictment tended to prove him guilty of the crime charged in the first count, viz., that he kept this room to be used for gambling purposes. Thus this proof, if it did tend to prove the defendant guilty of different offenses, related to one series •of transactions culminating in the crimes charged in the first, third, and fourth counts of the indictment.

Thus, assuming that the first count of the indictment charged a crime defined by section 343 of the Penal Code, and the third and fourth counts charged a different crime as defined by section 344 of the Penal Code, the acts complained of simply constituted different crimes and could be charged in separate counts in one indictment.

But it does not necessarily follow that by the first count of the indictment a crime under section 344 of the Code was not charged. It is true that the language of section 343 is followed in the indictment, but so much of such language as is used distinctly charges a crime under section 344. The indictment is that the defendant kept a room to be used for gambling purposes, and a person who keeps a place for gambling, or allows a room to be used for gambling, is guilty of an offense under section 344.

If a person keeps a room for gambling purposes, he keeps a place for gambling, and allows its use for that purpose, and seems to be guilty of an offense under section 344. The objection taken by demurrer seems, therefore, to have been properly overruled.

The next objection is as to the proof of transactions on days other than the day named in the indictment.

Section 280 of the Code of Criminal Procedure provides that the precise times at which the crime was committed need not be stated in the indictment. Hence the precise time is not a necessary ingredient of the offense, and it is the well-settled rule that the time and place where the crime was committed should be stated with certainty in the indictment, but it is not necessary to prove them as stated unless they are necessary ingredients in the offense. 2 Hawks P. C. 2 Ch. 46; 1 Hale, P. C. 36; 1 Arch. Crim. P. 85; Commonwealth v. Harrington, 1 Pick. 26 ; People v. Stocking, 50 Barb. 573.

In the case at bar it. was immaterial whether the crime-was committed on the 18th day of January or the 1st of January, or any intermediate day, and hence the proof was competent. Regina v. Firth, 11 Cox Crim. Cas. 234.

Hone of the other exceptions taken in the case seem to-require special notice.

The conviction should be affirmed.

Macombep, J., concurs; Bartlett, J., concurs in result..  