Allen v. Commonwealth

• Decision Date: 07 December 1917
• Parties: ALLEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

198 S.W. 896

178 Ky. 250

ALLEN v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 7, 1917

Appeal from Circuit Court, Fulton County.

Joe Allen was convicted of an offense, and he appeals. Affirmed.

F. S Moore, of Hickman, for appellant.

Chas H. Morris, Atty. Gen., and Henry F. Turner, Asst. Atty. Gen for the Commonwealth.

HURT J.

The indictment against the appellant, Joe Allen, accused him of the offense denounced by section 1967, Kentucky Statutes. A trial upon the indictment resulted in a verdict of guilty by the jury, and the imposition of a fine, in accordance with the verdict, in the sum of $250. A motion for a new trial was made and overruled, and, being dissatisfied with the judgment, he has brought it by appeal to this court for review. The grounds relied upon for a new trial contain several formal grounds, but the ones which appellant urges as sufficient to require the reversal of the judgment, and to entitle him to a new trial, are as follows: First. The court erred to his prejudice in overruling a general demurrer to the indictment. Second. The court failed to instruct the jury as to the entire law of the case. Third. The verdict of the jury is contrary to the law and the evidence.

(a) Section 1967, Kentucky Statutes, so far as is pertinent to the questions in hand, is as follows:

"Whoever shall suffer or permit any game or table, bank, machine or contrivance, mentioned or included in section 1960 of this chapter, to be set up, conducted, kept or exhibited in any house, boat or float, or on any premises in his occupation or under his control, or shall lease the same, or any part thereof for that purpose, shall be fined from two hundred and fifty dollars to five hundred dollars for each offense. * * * After proof of the setting up, conducting, keeping or exhibiting of such table, bank, machine, contrivance, or game in any such house, boat or float or place, it shall be presumed to have been with the permission of the person occupying or controlling the same, unless the contrary be clearly proven."

It is necessary to look to section 1960, supra, to ascertain what machines and contrivances or games the suffering or permission of which are denounced by section 1967, supra. The games, tables, banks, machines, and contrivances mentioned and included in section 1960, supra, are keno banks, faro banks, or other machines or contrivances "used in betting, whereby money or other thing may be won or lost," or a game of cards, oontz, or craps, "whereby money or other thing may be won or lost." The two statutes must be read together.

In the accusative part of the indictment, in the instant case, the offense charged is "suffering a gaming machine on premises," and in the descriptive portion of the indictment the machine is described as a certain machine and contrivance commonly known as a "slot machine," and which machine and contrivance is ordinarily used for gambling for money and property, "and for cigars, tobacco, and soft drinks, and other things of value," and, after alleging that appellant suffered and permitted such a machine to be conducted on his premises, it was alleged, "whereby and at and on which machine and contrivance money and property, cigars, tobacco, and soft drinks and other things of value were then and there won and lost, and with the permission, consent, and procurement of said Joe Allen." The demurrer, as we understand it, is directed to the insufficiency of the description of the offense as charged in the accusative part of the indictment, and also to the effect that in the descriptive portion of the indictment the machine alleged to have been operated is not such a one as the operation of which is made unlawful by the two sections of the statute, supra. The objections, however, seem to be more a play upon words than of anything of a substantial character. It is true, in the accusative part of the indictment, it does not describe the machine or contrivance as one used in betting, and whereby money or property is won or lost, nor does it contain the statement that the conduct of the machine was with the knowledge of the accused. The word "suffer," as used in this indictment and as used in the statute, is synonymous with the word "permit," and both of them imply knowledge of the thing suffered or permitted. To game, used in connection with a machine whereby money is won or lost, means to gamble, which necessarily means to bet and to win or lose in the operation. The principle is well established that, where an indictment is for a statutory offense, the description of the offense in the accusative part of the indictment is sufficient if it designates the offense by a brief general description in the language of the statute, or sufficiently so as to apprise a person of ordinary understanding of what is meant. Knoxville Nursery Co. v. Com., 108 Ky. 6, 55 S.W. 691, 21 Ky. Law Rep. 1483; Com. v. Schatzman, 118 Ky. 624, 82 S.W. 238, 26 Ky. Law Rep. 508; Com. v. Drewry, 126 Ky. 183, 103 S.W. 266, 31 Ky. Law Rep. 635; Overstreet v. Com., 147 Ky. 471, 144 S.W. 751; Drury v. Com., 162 Ky. 123, 172 S.W. 94; Cundiff v. Com., 86 Ky. 196, 5 S.W. 486, 9 Ky. Law Rep. 537; Com. v. Grinstead, 108 Ky. 59, 55 S.W. 720, 57 S.W. 471, 21 Ky. Law Rep. 1444, 22 Ky. Law Rep. 377; Mitchell v. Com., 88 Ky. 349, 11 S.W. 209, 10 Ky. Law Rep. 910; Com. v. C. & O. Ry. Co., 101 Ky. 159, 40 S.W. 250, 19 Ky. Law Rep. 329; Blackburn v. Com., 15 Ky. Law Rep. 239; Com. v. Tanner, 5 Bush, 316; Davis v. Com., 13 Bush, 318; Sellers v. Com., 13 Bush, 331; Com. v. Turner, 8 Bush, 1; Bunnell v. Com., 99 S.W. 237, 30 Ky. Law Rep. 491.

The rule now applying is to the effect that an accused in an indictment is presumed to have ordinary understanding, and to be able to comprehend what other persons of ordinary understanding are able to comprehend. In Com. v. Stout, 7 B. Mon. 247, it was held that if every fact necessary to constitute the offense is charged, or necessarily implied by following the language of the statute, the indictment in the words of the statute is sufficient. In Com. v. Schatzman, supra, and Drewry v. Com., supra, it was held that the meaning of an indictment was to be determined from the whole instrument, and not from any particular part of it alone; and if its averments contained all the necessary things to constitute the offense, and were sufficient to apprise a person of ordinary understanding of what was meant and intended to be charged, and what the accused is called upon to answer, the indictment is not bad upon demurrer. It is readily apparent from this indictment that the offense charged is that the accused suffered and permitted a machine ordinarily used for betting, whereby money or property is won or lost, to be conducted upon the premises in his occupation, and it expressly charges that it was done by his consent and permission.

The offense described in the accusative part of the indictment of "suffering a gaming machine on premises" amounts to a brief general description of the offense denounced by the statute, and, when read with the descriptive part of the indictment, leaves no doubt with regard to what is intended.

The complaint that the description of the machine, in the descriptive portion of the indictment, does not designate such a machine the operation of which is denounced by sections 1960 and 1967, supra, in that it describes it as a machine ordinarily used in gambling for money or property, instead of a machine used in betting, whereby money or property is won and lost, and for such reason does not describe such a machine as the conduct of which is unlawful, is also without merit. To bet is to stake or pledge money or property upon the event of a contingent issue; in other words, to wager. To gamble has no other meaning, except to play or to engage in a game for money or other stake; and to bet upon the result, brought out by a machine, is to gamble by means of the machine for money or property. Gambling is simply a derivative of the word "game," which, when connected with winning or losing money or property, has no other meaning, except to place the money or property for a stake or prize, or to use a machine or contrivance or cards or dice or billiards, according to certain rules, with a view to win money or property which is wagered upon the contingency of the result of the contest. Hence to say that a contrivance is ordinarily used in gambling for money or property is synonymous with saying that the contrivance is one ordinarily used in betting, and whereby money or property is won or lost; and the indictment explicitly alleges that the machine was one ordinarily used for gambling for money or property, and that it was so used upon the premises of the accused, with his permission and consent, and that, being so used, money and property were won and lost.

Neither does the allegation that the manner of the operation of the machine was to the grand jurors unknown make the indictment defective, as it is well known that there are many and various kinds of slot machines, the manner of the internal workings of which are known but to the expert few. Hence the demurrer was properly overruled.

(b) Objection is not made to the instructions which were given but it is complained that a substantial prejudice to appellant's rights occurred by a failure to give an instruction which...