Under these circumstances we think that the provision in question assumes more the nature of a proviso than of an exception and that the indictment is not defective because it does not negative all of the cases set forth in section 173. (Fleming v. People, 27 N. Y. 329; State v. Flanagan, 25 R. I. 369. )

The second proposition urged by the defendant that the indictment, aside from the foregoing alleged defect, does not state with sufficient particularity the facts constituting the alleged crime presents more difficulty.

The rule is applied in many cases that an indictment which charges a statutory crime in the words of the statute is sufficient. (People v. Ellis, 162 App. Div. 288; State v. Collins [Ia.], 159 N. W. Rep. 604; Parks v. State, 159 Ind. 211; Benham v. State, 116 Ind. 112; State v. Flanagan, 25 R. I. 369.)

It has been held, however, directly or in effect, in several jurisdictions in the cases of indictments or informations similar to the present one that the above rule does not apply and that it is necessary to set forth the details of the alleged offense. (State v. Carey, 4 Wash. 424; Schaeffer v. State, 113 Wis. 595; People v. Watson [Mich.], 162 N. W. Rep. 943; Dee v. State, 68 Miss. 601; O'Connor v. State, 46 Neb. 157; County of Steuben v. Wood, 24 App. Div. 442.)

Without finding it necessary to determine whether we should go as far as these cases go, we think that it was necessary for the present indictment to set forth one detail of the alleged offense which in this particular case would very likely involve and lead to setting forth generally the details of the offense.

It is abundantly established that in charging an offense committed upon or in respect of an individual-as diagnosing treating or offering to diagnose or treat a disease-it is necessary to name, or excuse naming by proper allegation, such individual. (People v. Corbalis, 178 N. Y. 516, concurring opinion of Judge Cullen; People v. Stark, 136 N. Y. 538; White v. People, 32 id. 465; People v. Taylor, 3 Den. 99; People v. Gregg,

59 Hun, 107; People v. Burns, 53 Hun, 274; Grattan v. State, 71 Ala. 344; Butler v. State [Ind.], 5 Blackford, 280; Walters v. State, 174 Ind. 545; State v. Wilson, 30 Conn. 500; Commonwealth v. Sheedy, 159 Mass. 55.) The reason for the rule is clearly and sufficiently stated in the opinion of Judge Cullen in the Corbalis Case. He there said: "I am of opinion that the indictment is fatally defective in failing to allege to whom pools were sold, or, if information as to that could not be obtained, that the names of such persons were unknown to the grand jury. This principle was held in People v. Burns (53 Hun, 274) and People v. Stone (85 Hun, 130), the prosecution being in the first case for selling impure milk and in the second for selling fertilizers with a false certificate. The rule is otherwise as to illegal sales of liquor, but this rule rests merely on precedent long established and can hardly be justified on principle. The idea suggested by some text-writers, that where the offense is merely one against the public and not against the individual, it is not necessary to allege the person with whom it was committed, finds no support in practice.

*

*

* The true reason for requiring the indictment to state the person to whom the sale has been made, if that information can be obtained, is that such statement identifies the occurrence and enables the defendant to properly meet the charge." (p. 523.)

There is an exception to this general rule which is thought to include the present case and excuse naming the person to or upon whom treatment was offered or applied. Where the crime consists of a series of acts continuous in their nature, such as carrying on a prohibited business, or keeping an unlawful resort, a general description reasonably including and describing the series will be sufficient. It is not necessary in such cases to set forth each act going to make up the offense, for, as said in Commonwealth v. Pray (13 Pick. 359, 362)," it is not each or all the acts of themselves, but the practice or habit which produces the principal evil and constitutes the crime."

(Ledbetter v. U. S., 170 U. S. 606; State v. Carlisle, 30 S. Dak. 475; Sterne v. State, 20 Ala. 43; Lawson v. State, Id. 65; Commonwealth v. Swain, 160 Mass. 354; Commonwealth v. Coleman, 184 Mass. 198.)

It may be

prac

In our opinion, however, this indictment does not come within that exception. It does not seem to us that the statute was intended to define or constitute the prohibited offense as consisting of a continuous series of acts amounting to the conduct of a business within the decisions referred to. that if we had nothing but section 161 prohibiting the “ tice of medicine and were relegated to the dictionary or common usage for a definition of that word we should be compelled to interpret it as meaning a continued and habitual performance of acts. But we are not thus left to these means of reaching a definition. Section 160 defines what "practice " means. Its meaning is satisfied whenever and as often as an individual "holds himself out as being able to * * * and offers or undertakes to diagnose, treat," etc. Whenever within the fair meaning of those terms on a single occasion an offender has held himself out as able to and has offered to treat a patient there has been a completed offense and it is not necessary to show that this operation has been repeated so many times that it has ripened into a habit or business. We think that the indictment and proofs in this case confirm this view.

If this is the correct interpretation, there is no question that the individual operated upon should have been named or proper excuse given for not naming him even within what has been said in cases applying the "business business" rule. rule. (Ledbetter v. U. S., 170 U. S. 610.)

The judgment should be reversed and the indictment dismissed.

COLLIN, HOGAN and ANDREWS, JJ., concur; CHASE, CARDOZO and CRANE, JJ., dissent.

Judgment reversed, etc.

(1) GRAND LARCENY IN FIRST DEGREE AND CRIMINALLY RECEIVING STOLEN PROPERTY CHARGED AS SECOND OFFENSE EVIDENCE SUSTAINING CONVICTION. Upon the prosecution of a defendant indicted for the crime of grand larceny in the first degree, charged as a second offense, and also for the crime of criminally receiving stolen property, charged as a second offense, evidence held sufficient to sustain a conviction under the first count.

(2) SAME EFFECT OF PUBLICATION OF NEWSPAPER ARTICLE INDICATING THAT

DEFENDANT WAS HABITUAL CRIMINAL.

The mere possibility of harm coming to the defendant by reason of the publication during the trial of an article indicating that he was an habitual criminal is not sufficient to authorize the granting of a new trial, where the court did all in its power to minimize any possible mischief that might have been done by the jurors having read said article.

(3) SAME DENIAL OF MOTION TO DISMISS COUNT OF INDICTMENT UPON

GROUND THAT CRIMES CHARGED WERE INCONSISTENT.

The denial of motions by the defendant to dismiss first one and then the other count of the indictment upon the ground that the crimes charged were inconsistent did not constitute reversible error where the court submitted to the jury only the first crime charged.

APPEAL by the defendant, Nathan Lubin, from a judgment of the County Court of Bronx county, entered in the office of the clerk of the county of Bronx on or about the 11th day of April, 1919, convicting the defendant of the crime of grand larceny in the first degree, charged as a second offense, and of criminally receiving stolen property, charged as a second offense, and also from an order of said court denying defendant's motion for the withdrawal of a juror and for a mistrial.

Clark L. Jordan, for the appellant.

Francis Martin, of counsel (Charles B. McLaughlin and Albert Cohn with him on the brief), for the respondent.

SMITH, J.:

In affirming this judgment of conviction there are only two questions which seem to call for discussion. During the trial one of the newspapers in the Bronx, called the Bronx Home News, published an article which reflected upon the defendant, in the main, by indicating that he was an habitual criminal. This came to the attention of the counsel and was brought to the attention of the court during the trial. The court examined che jurors as to whether this article would have any effect upon their determination and cautioned them that they should in no way consider anything contained therein in determining the case. The court did all in its power to minimize any possible mischief that might have been done by their having read this newspaper article. If the article had been published before the court sat and those called as jurors had seen it, it clearly would not disqualify those parties, provided they could swear they could and would give an impartial verdict notwithstanding their having read the article. The attorney for the appellant here says that that exact question was not put to them, but if so, it was because the defendant's counsel did not ask to have it put to then, and we think that the mere possibility of harm coming to the defendant by reason of the publication of the article without fault on the part of the People, is not sufficient in this case to authorize the granting of a new trial.

Another point is strenuously urged, to wit, that the indictment contains two counts, one for grand larceny in the taking of the property from the complaining witness by force, and the other for receiving stolen goods, knowing them to have been stolen. The position of the appellant is that these crimes are inconsistent and that he moved to dismiss first one and then the other count, which motions were both denied by the trial