Cawein v. Commonwealth

• Decision Date: 13 March 1901
• Citation: 110 Ky. 273,61 S.W. 275
• Parties: CAWEIN v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

61 S.W. 275

110 Ky. 273

CAWEIN v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

March 13, 1901

Appeal from circuit court, Kenton county.

"To be officially reported."

John D Cawein was convicted of the offense of maintaining a nuisance, and he appeals. Reversed.

John L Rich, for appellant.

C.J Whittemore and D. A. Glenn, for the Commonwealth.

HOBSON J.

On July 13, 1898, the grand jury of Kenton county returned four indictments against appellant for the offense of maintaining and continuing a common nuisance. The first indictment charged that he did from March 31, 1898, to and including April 30, 1898, unlawfully suffer and permit divers and sundry persons, to the grand jury unknown, habitually to assemble in a certain house in Covington, known as "Sharp's Place," which was in his possession and control, and then and there engage in betting, winning and losing money, on horse races. The second indictment charged the same offense committed from April 30, up to and including May 31, 1898; the third, from May 31 up to and including June 30, 1898; the fourth, from June 30 to July 13 1898. The four indictments are precisely the same, except the dates between which the offense is alleged to have been committed. They cover a continuous period of 112 days,--from March 31st to July 13th. Appellant was arraigned on the last indictment and pleaded not guilty. A trial was had. He was fined $75, and paid the judgment. He was then put on trial under the first indictment. He entered a plea of not guilty, and also pleaded his conviction under the other indictment in bar. The testimony was heard, and the court below at the conclusion of the evidence held the plea of former conviction not to be good. The jury returned a verdict finding appellant guilty as charged, and fixing his punishment at a fine of $100. Judgment was entered upon the verdict, and this appeal is prosecuted on the ground that a conviction under one of the four indictments was a bar to a further prosecution under the others.

The evidence showed that appellant kept the place referred to in the indictments from some time in March, 1898, until after the indictments were found; that it was what is known as a "pool room," at which bets were made on horse races in different parts of the United States; that there were blackboards on the walls, on which the names of the horses, also the weights and jockeys, were entered; that the Western Union Telegraph Company ran a wire to the room, so as to give the results of the races as they were run, the operator calling out the news to the public as it was received from the race course, and giving the relative positions of the horses at different points on the course; that there was a ticket writer, who took bets, and a cashier, who cashed the tickets. The pooling commenced about 1 o'clock in the afternoon, and continued at times until 6 or 7, depending on the point where the races were run. From 75 to 150 people gathered there. The daily business amounted to from $1,200 to $1,500. There were from 10 to 15 employés in the establishment. About 8 o'clock in the morning one man put upon the board the entries for the day. Some betting was done in the morning. Six or eight of the employés came about 8 o'clock in the morning, the rest about 12. The crowd left about 7 o'clock. The cashier stayed to finish up his accounts. The room was then swept and scrubbed every night, and a watchman left in charge until morning. There were several desks and other furniture in the room, for use in the business, all of which were placed there for the purpose of carrying on the business permanently. The employés were employed in March, with no fixed time of employment. For a time they were paid every three days, but after that, for convenience, they were paid daily, so that each day's business would show for itself. The house was operated continuously in this way during the whole time covered by the four indictments, without any change in its furnishings or the mode of doing business. It was never vacant, there being a man there every night, and it was clearly intended as a continuous thing from the time it was opened. No new impulse was subsequently given.

Under this evidence the keeping of the house was a nuisance maintained uninterruptedly, and was plainly a continuous offense from the time it was opened until the finding of the indictments. The commonwealth could not arbitrarily split up a continuous offense, and make what was done in April one offense, what was done in May a second, what was done in June a third, and what was done in July a fourth. If it could do this, it might further have split the offense up, and made each week the subject of a separate indictment, or followed any other arbitrary division of the time. The rule of law is elementary that a single cause of action cannot be split so as to be the subject of two suits. Freem. Judgm. § 238. The rule in criminal prosecutions is thus stated in Freem. Judgm. § 225: "The conviction of an offense, like the recovery of judgment in a civil action, is a bar to any further prosecution based on the same cause of complaint. The question often arises whether the offense of which one is accused is not a part of an offense of which he has already been convicted, and, if so, whether the whole crime is not merged in the former conviction; for the same offense cannot be split into parts, and made to sustain two or more convictions of the same person." In Re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658, three indictments were returned against the defendant under the act of congress providing that, if a male person cohabits with more than one woman, he shall be deemed guilty of a misdemeanor. The indictments were just alike in all respects, except that each covered a different period of time. The first charged a continuous offense from the 1st day of January to the 31st day of ...