People v. Cavanagh — 157 A.D. 224

Majority

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The People of the State of New York, Appellant, v. John Cavanagh and Others, Respondents.

Second Department,

May 16, 1913.

Headnote

Crime—Penal Law, section 970— common gamblers—indictment.

An indictment charging defendants with being “common gamblers,” and alleging that at a time and place specifically stated, each aiding, assisting and abetting the other, the defendants “ did wilfully, unlawfully, knowingly and feloniously engage as dealers, gamekeepers and players in a certain gambling game commonly called ‘ Klondike,’ where money was dependent upon the result,” is sufficient, and charges a crime under section 970 of the Penal Law.

Carr, J., dissented.

Appeal by the plaintiff, The People of the State of New York, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 15 th day of February, 1912, sustaining a demurrer to the indictment charging the defendants with being common gamblers.

The indictment is as follows:

“The Grand Jury of the County of Kings, by this indictment, accuse John Cavanagh, Domato Pomarico, Joseph Abrams and Jacob Kupfer of the crime of being common gamblers, committed as follows:

“ On the 12th day of August, 1911, at the Borough of Brooklyn, of the City of New York, in the County of Kings, the said John Cavanagh, Domato Pomarico, Joseph Abrams and Jacob Kupfer, each aiding, assisting and abetting the other, in a certain room in a certain building, situate and known as

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Number 47 Rockwell Place, in the borough, city and county aforesaid, did wilfully, unlawfully, knowingly and feloniously engage as dealers, gamekeepers and players in a certain gambling game commonly called Klondike,’ where money was dependent upon the result; against the form of the statute in such case made and provided.”

Defendants demurred upon the grounds: “First: That the indictment does not conform substantially to the requirements of sections two hundred and seventy-five and two hundred and seventy-six, and, Second: That more than one crime is charged in the indictment within the meaning of sections two hundred and seventy-eight and two hundred and seventy-nine, and, Third: That the facts stated do not constitute a crime.”

Edward A. Freshman, Assistant District Attorney [James C. Cropsey, District Attorney, with him on the brief], for the appellant.

Jerry A. Wernberg, for the respondents.

The indictment charged the defendants with being common gamblers under the provision of section 970 of the Penal Law, which provides: “A person * * * who engages as dealer, game-keeper, or player in any gambling or banking game, where money or property is dependent upon the result; * * * is a common gambler. ”

Section 275 of the Code of Criminal Procedure provides that an 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.”' I think that the indictment was sufficient in form, and that a crime was charged under section 970 of the Penal Law. (Phelps v. People, 72 N. Y. 334 ; People v. West, 106 id. 293; People v. King, 110 id. 418; People v. Weldon, 111 id. 569; People v. Bright, 203 id. 73; People v. Herlihy, 66 App. Div. 534 ; People v. Adams, 85 id. 390.)

The learned counsel for respondents directs our attention to a long line of cases holding that an indictment is bad which does not charge the crime and also state the act constituting tha

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crime. This is the rule, but it has no effect on the question presented on this appeal, because the indictment charges the crime, viz., “ common gamblers,” and alleges the act constituting the crime, viz., that at a time and place specifically stated the defendants “did wilfully, unlawfully, knowingly and feloniously engage as dealers, gamekeepers and players in a certain gambling game commonly called ‘Klondike,’ where money was dependent upon the result.”

But one crime is charged and each defendant is charged with that crime. It follows that the decision of the learned County Court was erroneous and that the order of the County Court of Kings county sustaining the demurrer must be reversed.

Jenks, P. J., Burr and Thomas, JJ., concurred; Carr, J., dissented.

Order of the County Court of Kings county reversed and demurrer overruled.

Cases cited

Phelps v. People 72 N. Y. 334 N.Y. 1878-02-05 p. 225