Miggins v. State

• Citation: 184 A. 911,170 Md. 454
• Decision Date: 20 May 1936
• Docket Number: 30.
• Parties: MIGGINS v. STATE.
• Court: Court of Appeals of Maryland

184 A. 911

170 Md. 454

MIGGINS v. STATE.

No. 30.

Court of Appeals of Maryland

May 20, 1936

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

Harry D. Miggins was convicted of establishing, using, keeping, and occupying a certain house, building, grounds, and place, and a portion of a certain house, building, grounds, and place within the state of Maryland for the purpose of making selling, and buying books and pools therein and thereon, on the result of any race, contest, and contingency, and he appeals.

Affirmed.

Argued before BOND, C.J., and OFFUTT, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

Calvert K. Hartle, of Hagerstown, for appellant.

Herbert R. O'Conor, Atty. Gen., Charles T. LeViness, III, Asst Atty. Gen., and Martin L. Ingram, State's Atty., of Hagerstown, for the State.

OFFUTT Judge.

The grand jury for the February term, 1936, for Washington county indicted Harry D. Miggins, the appellant, for establishing, using, keeping, and occupying a certain "house, building, grounds and place, and a portion of a certain house, building, grounds and place, within the state of Maryland, situate on the second floor of the Arcade building on West Washington street, in Hagerstown, Washington county, Maryland, for the purpose of making, selling and buying books and pools therein and thereon upon the result of any race, contest and contingency." To that indictment Miggins demurred. The demurrer was overruled, he then confessed a plea of guilty, sentence was imposed, and judgment entered. The appeal is from that judgment.

The effect of the appellant's plea of guilty was to waive proof of any facts alleged in the indictment, but not to waive objection to it on the ground that the facts alleged did not constitute an indictable offense, nor to waive objection to the jurisdiction of the court to try him under it. 16 C.J. 402 et seq. Those questions may therefore be considered on this appeal.

The offense charged in the indictment is defined in Code, art. 27, § 247, which reads in part as follows: "It shall not be lawful for any person or persons, or association of persons, or for any corporation within the State of Maryland, to bet, wage or gamble in any manner, or by any means, or to make or sell a book or pool on the result of any trotting, pacing or running race of horses or other beasts, or race, contest or contingency of any kind, or to establish, keep, rent, use or occupy or knowingly suffer to be used, kept or rented or occupied, any house, building, vessel, grounds or place, or portion of any house, building, vessel, grounds, or place, on land or water, within the State of Maryland, for the purpose of betting, wagering or gambling in any manner, or by any means, or making, selling or buying books or pools therein or thereon upon the result of any race or contest or contingency." It is apparent from that language that the statute defines not one but several offenses, one of which is to "bet, wage or gamble * * * or sell a book or pool on the result of any trotting, pacing or running race of horses or other beasts, or race, contest or contingency of any kind." Another is to "establish, keep, rent, use or occupy * * * any house, building, vessel, grounds or place * * * for the purpose of * * * making, selling or buying books or pools therein or thereon upon the result of any race or contest or contingency."

The offense charged in the indictment is not that of making, buying, or selling books or pools on races, but that of keeping, using, and occupying a certain "house, building, grounds and place, and a portion of a certain house, building, grounds and place" for that purpose.

Code, art. 27, § 247, is a codification of chapter 232 of the Acts of 1894, amended by chapter 285 of the Acts of 1898. In Stearns v. State, 81 Md. 341, 32 A. 282, it was held that the information in that case, which was based on that statute, was bad because in each count thereof it stated both offenses in the disjunctive or alternative. While the court was dealing there with the Act of 1894, the amendment made by the Act of 1898 did not materially change that part of it which is under consideration here. In that case it was held that each offense could properly have been charged in a separate count, or both might have been stated in the same count if connected by the conjunctive "and" instead of by the disjunctive "or." In the indictment in this case, what the court held in Stearns v. State to be a separate offense has been stated separately, and the count under consideration therefore was free of the vice which invalidated the indictment in the Stearns Case. Pritchett v. State, 140 Md. 310, 313, 117 A. 763.

It is suggested, however, that it does not charge the crime in the language of the statute and that it fails to apprise the defendant of the essential elements of the supposed crime which it does charge. The force of those criticisms is not readily apparent. The indictment does in fact charge the offense in the very language of the statute, as will appear from any comparison of the two, the statute and the indictment.

The objection that it fails to apprise the defendant of the elements of the crime seems to rest upon its failure to state that defendant operated a place for the purpose of making, selling, and buying books upon the result of some particular race, contest, or contingency. But the very essence and purpose of the statute was to make it unlawful to operate a place for making, selling, or buying books upon "any" race, contest, or contingency. The evil at which it was aimed was that of keeping a place where such operations might be carried on. Keeping an inn at which persons may board is one thing, boarding in an inn is another. In this case the indictment charges that on the 24th day of August, 1935, the defendant unlawfully did establish, keep, use, and occupy a place specifically named and identified, for the purpose of making, selling, buying books and pools upon the result of "any" race, contest, and contingency.

Since the indictment followed the language of the statute and alleged facts sufficient to fully apprise the defendant of the particular offense with...