
    The State of Louisiana v. F. Agudo et al.
    In a prosecution for a violation of the Act to Prevent Gambling, evidence may be introduced showing that the defendants had been engaged in gaming, and playing at other times previous to the day charged in the information.
    The time of the commission of an offence laid in' the indictment ís not material, and does not confine the proofs within the limits of that period. The indictment will be satisfied by proof of the offence on any day anterior to the finding.
    The 1st section of the act of March 14th, 1836, amending the act of 19th of March, 1835, to prevent gambling, merely changes the destination of the fines when collected; and in no ■ manner changes or affects the offence, as declared in the act of 1835. An information "for that offence rightly concluded against the form of the statute.
    APPEAL from the First District Court of New Orleans, McHenry, J.
    
      W. A. Elmore, Attorney General, for the State,
    contended : The defendant was proceeded against by information, for a violation of the act entitled, “ An act to Prevent Gambling,” approved March 19th, 1835. He was convicted upon the first and third counts: the former charging him with keeping and maintaining a certain gaminghouse and banking game; the latter with aidiüg and assisting in keeping and maintaining a certain gaming house and banking game.
    The record presents two questions only: one upon a bill of exceptions, as to the admissibility of evidence; the other, on a motion in arrest of judgment, alleging that the information is defective, in charging a violation of the statute, instead of the statutes.
    Upon the first point, the bill of exceptions shows that the court permitted the attorney general to “ prove other acts of gaming which had occurred about the time charged in the information.” The correct rule as to time, as it is believed, is laid down by Wharton, in his Criminal Law, page I58y where he says : “The time of a commission of an offence, laid in an indictment is not material, and does not confine the proofs within the limits of that period ; the indictment will be satisfied by proof of the offence, on any day anterior to the finding.” See the authorities there cited. See also Roscoe, page 100. 1st Chitty, 223. Upon the second point, does the information conclude correctly in charging a violation of the statute, instead of a violation of the statutes 1 The information in this case was based upon one statute only : that of 1835. There was no other statute violated ; and no other statute was relied on. No other statute being read to the jury or quoted in the trial of the cause. See case of Kane v. The People, 8 Wendell, 212. Wharton’s Criminal Law, 105. The State v. Berry, 4 Halstead, 376.
    
      C. Hufour, for appellant, contended: 1. The defendant relies, before this court, first, upon the third ground urged for a new trial in the lower court, which is as follows: The court has allowed the attorney general to travel out of the case, and to introduce evidence tending to show the defendant’s gaming and playing at other days and times, besides the day mentioned in the information ; which cannot be done when not alledged in the information. When the evidence was offered, the objection was urged, but overruled. 2. The defendant next insists upon the ground filed in arrest of judgment, which is as follows : The sentence to be passed in a case like the present, is gathered from and based upon two statutes enacted in 1835 and 1836 ; whilst upon the face of the information, it appears that the present proceedings are founded upon one statute; the defendant being charged with violating the statute instead of the statutes, made and provided to prevent gambling. The two acts are mentioned in the body of the sentence.
   The judgment of the court was pronounced by

Preston, J.

The defendants were convicted of a violation of the act to prevent gambling, and have appealed from the judgment rendered thereon. The grounds on which they rely for a reversal of the sentence are, 1st. That the district court permitted the attorney general to introduce evidence showing that the defendants had been engaged in gaming and playing, at other times previous to the day charged in the information. 2d. That the sentence to be passed upon conviction, depends upon two statutes, one approved in 1835, and the other in 1836 ; whereas the prosecution is based upon one statute, and concludes against the form of the statute.

We think the first ground upon which a reversal of the sentence is claimed, is untenable. Wharton, in his Treatise on Criminal Law, lays down the true rule, as to the proof of the time at which an offence was committed to support a iDrosecution. “ The time of the commission,, laid in an indictment, is not material, and does not confine the proofs within the limits of that period. The indictment will be satisfied by proof of the offence on any day anterior to the finding.” So that the evidence was proper, even if the offence consisted in an isolated act.

But, the defendants were accused of keeping a banking or gaming house. The keeping a banking or gaming house a single day, might constitute the offence ; but, in common acceptation, the keeping a house implies that it has been kept more than a day. It was, moreover, proper for the attorney general under the information- to show that the house was a banking and gaming house. Proof that banking and gaming had been carried on in the house, previous to the time the offence- charged- in the' information was committed, gave the house that character; and proof that the accused had banked and gamed there, before the act and time charged in the information, tended to show the guilty knowledge and intention, which, with the act, constituted the offence charged. See Archbold’s Criminal Pleadings and Evidence, p. 105.

As regards the second ground, the prosecution was for a violation of the act of 1835 alone, which declares the offence, and the penalty incurred by its commission. A subsequent statute passed in 1836, p. 158, directs, “ that the fines specified in the second and third sections of the act to which this is an amendment, shall, when collected, be paid one-half to the informer, and the other half to the use of the charity hospital of New Orleans.” This last act merely gives a destination to the fines when collected, and in no manner changes or affects the offence, as declared in the act of 1835. There is but one statute which prohibits the offence. The information, therefore, very properly concluded against the form of the statute.

The judgment of the First District Court is therefore affirmed, with costs.  