dissenting in part and concurring in part.
I fully concur in Parts II, III, IV, V and VI. I dissent with respect to Parts I and VII.
In Part I, the majority emphasizes that the separate charges focus upon a distinct day on which the public place of business was maintained and a lottery conducted.
As quoted in the majority opinion, Keeth v. State (1923) 193 Ind. 549, 139 N.E. 589, noted:
“The words ‘maintains’ and ‘maintaining’ denote continuous or recurrent acts approaching permanence.” Maj. opinion at 686.
Generally, the term “recurrent” is used in the sense of “repeated”. Wabash Corporation v. Ross Electric Corporation, 89 F.Supp. 720, 726 (E.D.NX1950). It describes a “returning from time to time.” Messer v. Beighley (1963) 409 Pa. 551, 187 A.2d 168, 170. It connotes repetition of the same act or conduct and contemplates cessation and resumption, not a single act continuing and unbroken in time.
Although the word “continuous” is most often deemed to refer to an act unceasing and uninterrupted in nature, it has been defined as “recurring regularly after minute interruptions.” Fowler v. United Equitable Insurance Co. (1968) 200 Kan. 632, 438 P.2d 46, 49. Particularly where the word is used, as in Keeth, supra, in tandem with the word “recurrent”, it takes on the latter caste.
*692I am accordingly led to the conclusion that the brief respites from the lottery activity did not constitute such interruption as .to undermine the continuous and recurrent nature of the business. Pruitt, as charged, maintained and managed her public place of business. She did so each and every day. The continuous and recurrent activity was charged as such. Whether the prosecution might have avoided the single crime nature of this offense by merely alleging that on each separate date Pruitt conducted a lottery is not the question.
The State obviously intended that there be some significance placed upon the fact that Pruitt not only conducted a lottery on the days alleged but that she did so professionally by maintaining and/or managing a public place of business in order to do so. The State voluntarily placed this case in the category of a “keeping” or “maintaining” case. Quite logically, the prosecutor deemed it more egregious for Pruitt to be engaged on a continuing and continuous big business basis. In any event, the State should be bound by the manner in which the charge was framed.
Here, Pruitt’s lottery activity was a “series of acts set on foot by a single impulse and operated by an unintermittent force.” 22 C.J.S. Criminal Law § 3(b) at 4 (1989) as quoted by the majority. Maj. opinion at 688. It was therefore a continuing offense subject to but a single prosecution.
The language of the charges and the evidence emphasized by the State lead to a conclusion that a continuing offense was charged and proved. Time was not of the essence of the offense. It was therefore improper to arbitrarily attempt to divide and prosecute the crime as several separate offenses.
Because of my view with regard to the continuous and recurrent nature of Pruitt’s business operation, I must also dissent as to Part VII of the majority opinion.
I would affirm the two year sentence and a $10,000 fine on one count of professional gambling and the two year sentence and the $10,000 fine on the one count of promoting professional gambling. In my vote to affirm the latter conviction, I emphasize that there was evidence of promotion, as such, separate and distinct from conducting the bingo operation itself.