Boyd v. State
| Decision Date | 16 November 1936 |
| Docket Number | 32159 |
| Court | Mississippi Supreme Court |
| Parties | BOYD et al. v. STATE |
1. INDICTMENT AND INFORMATION
Indictment charging that defendants were interested in loss or gain of gambling table held not demurrable as charging more than one offense in one count by referring to "games of chance," since offence charged did not end by playing of one game, but was continuous (Code 1930, section 962).
2. CRIMINAL LAW.
Supreme Court would not interfere with trial court's discretion in overruling motion for severance made by seven defendants charged with being interested in gambling table (Code 1930 sections 962, 1272)
3. CRIMINAL LAW.
In prosecution of seven defendants for being interested in gambling table, evidence as to gaming on occasions subsequent to first occasion admitted when all defendants but one participated in furtherance of game held not admissible where evidence as to subsequent occasions disclosed separate offenses in commission of which some of the defendants did not participate (Code 1930, sections 962, 1285).
4 GAMING.
In prosecution of seven defendants for being interested in gambling table, evidence held insufficient to sustain conviction as to defendant who played on table, but as to whom evidence contained nothing to indicate that he was at any time interested in loss or gain of table (Code 1930, section 962).
APPEAL from circuit court of Pike county, HON. J. F. GUYNES, Judge.
Loubette Boyd, John Battaglio, and others were convicted of becoming and being interested in a gambling table, and they appeal. Reversed and remanded as to all except the second named defendant who is reversed and discharged.
Judgment reversed and cause remanded.
F. D. Hewitt, Justin J. Cassidy, Junior O'Mara and Williams & Hunt, all of McComb, for appellants.
We realize that section 1272 of the Mississippi Code of 1930 leaves the granting of severances to defendants who have been jointly indicted for misdemeanors entirely in the discretion of the court. We are further familiar with Stewart v. State, 2 So 73, 64 Miss. 626, wherein it is held that the granting of severance to defendants jointly indicted for a misdemeanor is a matter in the discretion of the court. We are further familiar with other decisions of this and other courts holding the above statement to be the correct law, however, there is to the effect in the opinion of the court in Stewart v. State, supra, that if a court abuses its discretion in refusing to grant an application for a severance in a case then this will be held error.
We respectfully submit to this honorable court that the overruling of the application for a severance in this cause in the court below was manifestly an abuse of the court's discretion.
There can be no doubt under the facts in the case at bar but what the trying of all of the defendants in the court below jointly and under one indictment was highly prejudicial to appellants or defendants below in their defense.
Defendants who merely commit similar crimes and not the same crime cannot as a rule be joined in the same indictment.
16 C. J. 354; 14 R. C. L. 194; Clue v. State, 78 Miss. 661, 29 So. 516.
The state must charge one offense and not many. The defendant is only called on to meet one charge when the indictment contains but one count, and this charge must be definite and unambiguous.
Montgomery v. State, 107 Miss. 518, 65 So. 572; Townsend v. State, 137 Ala. 91, 34 So. 382.
We call the court's attention to this fact that in the case at bar no witness for the state testified that each and every one of the appellants or defendants in the case at bar were present committing the offenses charged against them at any one time.
Howard v. State, 83 Miss. 378, 35 So. 653; Wheeler v. State, 76 Miss. 265, 24 So. 310.
The proposition in regard to the proof necessary to be produced by the state before appellants can be convicted under the indictment is that it is necessary for the state of Mississippi to prove beyond a reasonable doubt that the appellants or defendants in the court below not only furnished articles with which to carry on this game of chance, if any articles were furnished by anyone and if any game of chance was carried on, but it is also incumbent upon the state to prove that appellants or defendants in the court below were interested in the toss or gain of said tame. This the state failed to do. The entire record in this case is wholly bare upon this question. Not a single witness who testified for the state attempted to say that any of the defendants in the court below were interested in the loss or gain of the table.
Brazele v. State, 86 Miss. 286, 38 So. 314; Jones v. State, 80 Miss. 181, 31 So. 581; Rawls v. State, 70 Miss. 739, 12 So. 584.
The court's attention is called to the wording of the indictment, reading: "A table on which games of chance were then and there played," thus charging seven different persons with playing more than one game in one count of the indictment.
Under section 26 of the Constitution of this state, the defendants were entitled to be advised of the nature and cause of the accusation against them.
Montgomery v. State, 107 Miss. 518; Howard v. State, 83 Miss. 378, 35 So. 653.
The jury panel should have been quashed.
Morrison v. State, 124 So. 362; Cook v. State, 90 Miss. 137, 43 So. 618; Rhodman v. State, 120 So. 201.
The motion for a severance and motion to require the state to elect and the objections to testimony of second and succeeding offenses, should have been sustained.
Evidence of more than one offense of the kind charged is not admissible under the statute.
Section 1285, Code of 1930; Lowe v. State, 127 Miss. 340, 90 So. 78; Howard v. State, 83 Miss. 378.
The evidence shows that different ones of the defendants were present at the different times while the dice game was going on but does not show that all of them were present at all of the games and McCarlie testified about a game in another place than the one in which Calhoun and others testified about and other witnesses testified about a dice game at indefinite times and long before and perhaps after the indictment in this case was found, making six different games at two different places.
We respectfully submit that after all of these matters were before the court the motion to require the state to elect which offense testified about it would rely upon for a conviction, should surely have been sustained.
King v. State, 99 Miss. 23, 54 So. 657.
The proof must show that defendants furnished articles, and were interested in the loss or gain of the table.
Crawford v. State, 133 Miss. 147, 97 So. 534; Parkinson v. State, 145 Miss. 237, 110 So. 513.
Webb M. Mize, Assistant Attorney-General, for the state.
The record shows that the application for a severance was made after the defendants had been arraigned. In a felony case a defendant is entitled to a severance if application is made before arraignment. In a misdemeanor case persons jointly indicted may be either tried jointly or separately, the matter being left in the discretion of the court.
Sections 1271 and 1272, Code of 1930; Stewart v. State, 64 Miss. 626; Goffredo v. State, 145 Miss. 66, 111 So. 131.
This indictment showed that all defendants were jointly interested in the gambling table. The Howard case, 83 Miss. 378, has reference to a situation where a number of defendants are indicted for gambling, but where the gambling was done in different places and the Howard case throws no light here for the further reason that the defendants there were shooting craps and the joint ownership of a gambling establishment was not charged.
Ross v. State, 135 Miss. 862, 101 So. 289.
All jury laws are directory only.
There is no hint anywhere in the record and no complaint that the jury was unfair, biased or prejudiced.
Harris v. State, 155 Miss. 794, 125 So. 253; Bruce v. State, 169 Miss. 355, 152 So. 490.
Argued orally by Junior O'Mara and F. D. Hewitt, for appellant.
The appellants were convicted of violating ...
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Johnston v. State
...to the trespass were the same as to all these defendants. Hence there was no abuse of discretion in denying the motion. Boyd v. State, 1936, 177 Miss. 34, 39, 170 So. 671. McGEHEE, C. J., and LEE, HOLMES and ARRINGTON, JJ., concur. ...