
    People v. Emerson.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Criminal Law—Indictment—Duplicity—Gaming.
    An indictment in several counts charged (1) keeping a room to be used for gambling purposes; (3) selling lottery policies; (4) for selling papers or writings in the nature of bets or wagers upon the drawing of numbers of a lottery. Held, that though the first count followed the language of Pen. Code N. Y. § 343, which provides that a person who keeps a room to be used for gambling is guilty of a misdemeanor, it also charges an offense under section 344, which provides that a person who uses, or allows to be used, a room for gambling, or who sells, or offers to sell, lottery policies, or any writing, papers, or documents in the nature of a bet or wager upon the drawing or drawn numbers of a lottery, is punishable, etc., and, the several counts referring to the same transaction, a demurrer will not lie on the ground that more than one crime is charged in the indictment, within the meaning of Code Grim. Proc. N. Y. | 378, which provides that “the indictment must charge but one crime, and in one form, ” except as provided in section 379, by which“the crime maybe 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. ”
    3. Same—Allegation and Proof of Time.
    Under Code Grim. Proc. § 380, providing that the precise times at which the crime was committed need not be stated in the indictment, proof that the offense was committed on days other than the day mentioned in the indictment is competent.
    
      Appeal from court of general sessions, New York county.
    Herman J. Emerson was indicted and convicted for keeping a room to be used for gambling purposes. From an order overruling a demurrer to the indictment and the judgment thereon defendant appeals. For former opinion in this case, see 5 N. Y. Su’pp. 374. Pen. Code N. Y. § 343: “A person who keeps a room * * * to be used for gambling, or for any purpose or in any manner forbidden by this chapter, or, being the owner or agent, knowingly lets or permits the same to be used, is guilty of a misdemeanor.” Section 344: “ A person who is the owner, agent, or superintendent of a place * * * for gambling, or who hires or allows to be used a room * * * for such a purpose, * * * or who sells or offers to sell what are commonly called ‘ lottery policies,’ or any writing, paper, or document in the nature of a bet, wager, or insurance upon the drawing, or drawn numbers of any public or private lottery, * * * is * * * punishable by imprisonment for not more than two years, or by fine not exceeding one thousand dollars, or both.”
    Argued before Van Brxjnt, P. J., and Bartlett and Maoomber, JJ.
    
      Howe c6 Hummel, for appellant. William T. J eróme, for the People.
   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 New York to be 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 numbers 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: “Sec. 278. The indictment must charge but one crime, and in one form, except as in the next section provided. See. 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 transaction. In such a 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 alleged 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 Denio, 83; Taylor v. People, 12 Hun, 213; Reg. v. Trueman, 8 Car. & P. 727; Whart. Crim. Law, § 416. A count for burglary, with an attempt to commit larceny, -i= * *_ g0 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 count 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 tend 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 844 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 Hawk. P. C. § 2, c. 46; 1 Hale, P. C. 36; 1 Archb. Crim. Proc 85; Com. v. Harrington, 3 Pick. 26; People v. Stocking, 50 Barb. 573. In the case at bar it was immaterial whether the crime was committed on the 18th of January or the 1st of January or any intermediate day, and hence the proof was competent. Reg. 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. All concur; Bartlett, J., in the result.  