(dissenting) — I dissent. While it is true that, by express mandate of the statute, an information must be direct and certain as to the crime charged and that it must charge but one crime, this information, in my judgment, is in no way obnoxious to this requirement. It is as direct and certain as to the crime charged as the statute itself is, for it is in the language of the statute. It charges but one crime, and that is the crime of conducting a gambling resort. If it charged the defendants with gambling and also with keeping a gambling resort, there would be some merit in the conten*626tion that it was duplicitous and did not notify the defendants of what crime they were charged with, to the end that they might intelligently prepare their defense. This is all they are entitled to, as is shown by construing the statute quoted in connection with § 6850 [Ballinger’s Code] to the effect that the indictment or information is sufficient if it can be understood therefrom (so far as this question is concerned) that the act or omission charged as a crime is clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. If the same force and effect were given to this provision of the statute which reaches to the merits of the case, as is given to the more technical requirements of § 6844, or if that section were construed in connection with the salutary provisions of § 6850, the defendants would be protected in all their rights, while at the same time the intention of the law would prevail and malefactors would not so often go unwhipped of justice.
The respondents cite several cases to sustain the doctrine that a defendant cannot be charged in one and the same count with two or more independent offenses, and this is no doubt the established rule, especially where the penalties for the different crimes are different. But this rule has no application to the case at bar, in so far, at least, as the contention is concerned, which I understand is the basis of the decision, viz., that this information charges the defendants with committing the crime of maintaining a gambling resort at different times; for the crime charged is exactly the same on one date as another, and the penalty is the same. When a statute enumerates several acts in the alternative, the doing of which is subjected to the same punishment, all of such acts may be charged cumulatively as one offense. 10 Ency. Plead. & Prac., p. 536. This announcement is well sustained by authority. In United States v. Scott, 74 Fed. 213, the indictment charged a series of acts, all of the same character and punishable by the same penalty, and the indictment was sus*627tained by Judge Taft, who cited, approvingly, Reg. v. Bleasdle, 2 Car. & K. 765, where it was held that, where a man for several years had been stealing coal by an entry run by him into the seams of coal belonging to forty other coal mine owners, he might be indicted on one count for all the thefts in his continuous series of coal mining.
It cannot be that the defendants are entitled to anything more than justice, or in other words a fair trial. That is the ultimate object of all laws governing criminal procedure, and ought to be borne in mind in the construction of criminal laws. The defendants could not be wronged in any way by going to trial on the information filed, and if the state saw fit to embrace different dates, the only result would be that the action tried would bar the prosecution for the same crime between the dates alleged, which the respondents could not complain of.
In any event, the demurrer should only have been sustained to that portion of the information which charged the commission of the crime at divers and different other dates, etc. If the commission of the crime at those times could not be proven, it was not because a definite crime had not been charged, but because that portion of the information objected to was surplusage, and there was still left the definite and distinct charge that the crime was committed on the 5th day of April, A. D. 1909, and respondents should have been compelled to answer to it. This may not be the general practice in the trial of criminal actions, but obviously it ought to be.