68 N.Y.S. 263 | N.Y. App. Div. | 1901
The first count of the indictment charges the appellant and one Langfried with the offense of keeping a room to be used for the purpose of gambling. The second count charges the same defendants with the crime of allowing a room, establishment, table and apparatus to be used for gambling purposes. A third count charges the offense of maintaining a public nuisance. After the evidence bad all been received, and upon motion of the defendant, the court directed the prosecution to elect upon what count or counts of. the indictment the prosecution would ask that the case be submitted. Thereupon the prosecution elected to go to the jury upon the first and second counts of the indictment, and the jury rendered a general verdict of guilty as to both defendants. The defendant Trainor alone appeals. The judgment is asked to be set aside upon several grounds, among which is, first, that the first count of the indictment is insufficient as failing to specify any crime, and that, as the second charged the commission of a felony and the first a misdemeanor, and the judgment as entered convicts the defendant of a misdemeanor, there was in fact no conviction under the second count, and no basis for a conviction under the first; second, that the evidence upon the trial is insufficient to support the verdict.
We are of opinion that no defect exists in the. indictment so far as the specification of separate and distinct offenses are concerned. The offenses which are specified in the several counts of the indict
. It appeared that the. defendant Trainor was, for a part of the timé at least, in charge of the premises on the lower floor, over
Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.
Judgment affirmed.