Church v. Territory

Decision Date28 August 1907
CourtNew Mexico Supreme Court

Appeal from District Court, Chavez County; before Justice W. H Pope.

Joshua P. Church was convicted of permitting a minor to gamble in his saloon, and he appeals. Affirmed.

On the 12th day of November, 1903, the defendant was indicted, and the body of the indictment is as follows: "That Joshua P. Church, late of the county of Chavez, in the territory of New Mexico, on the 25th day of October, in the year of our Lord one thousand nine hundred and three, at the county of Chavez, aforesaid, in said territory of New Mexico, being then and there proprietor, keeper and manager of a certain saloon there situate where intoxicating liquor is kept and offered for sale and where gambling is carried on and permitted, unlawfully and knowingly allow and permit one Guy C. Clements, a minor under the age of twenty-one years and a pupil of a school and educational institution, to wit, The New Mexico Military Institute, to be and loiter upon and frequent the premises belonging to said saloon and engage in games and amusements thereon, contrary to the form of the statute in such case made and provided and against the peace and dignity of the territory of New Mexico."

The record in this case discloses very few facts, but those disclosed, together with the admission of the defendant, seem sufficient for a proper understanding and disposition of the case. The substance of the proof was that Guy C. Clements Clarence Clements, Reid Curtis, and one McCracken were in the Oriental Saloon, at Roswell, some time during September October, or November, 1903, and while there Guy C. Clements engaged in playing the roulette wheel, while the others watched the play; that Guy C. Clements and his brother Clarence were in that saloon more than once; that all of these boys were minors and students of the New Mexico Military Institute; that they were not molested or put out of the saloon at any time; that a man by the name of O'Conner was operating the roulette wheel in the saloon and, so far as the testimony shows, the defendant was not in the saloon at the time these boys were there. The defendant, however, admits upon the record that he was the owner and manager of the Oriental Saloon in the fall of 1903. Upon a trial before a jury, the defendant was found guilty as charged in the indictment. Motion for a new trial having been overruled, judgment was rendered on the verdict, and the defendant was sentenced to pay to the territory a fine of $50 and costs, and to stand committed until fine and costs were paid. A motion in arrest of judgment was filed and overruled, and the defendant has brought the cause to this court by appeal.

Gatewood & Dunn, for appellant.

W. C. Reid, Atty. Gen., for the Territory.


The indictment is based upon the violation of section 3, c. 3, p. 19, Laws 1901, which is as follows: "Section 3. It shall be unlawful for the proprietor, keeper or manager of any saloon where intoxicating liquor is kept or offered for sale, or where gambling in any form is carried on or permitted, to permit any minor under the age of twenty-one years or any pupil in any school or educational institution, to loiter upon or frequent the premises belonging to such saloon, or to engage in games or amusements of any kind thereon." Section 7 of the same chapter is also pertinent, and provides that: "The word 'person' as used in this act, shall be deemed to mean firm or corporation, as well as natural person, and the person managing the business of such firm or corporation shall be liable to the penalties prescribed by this act. And the proprietor or owner of any of the establishments mentioned in this act shall be liable to the penalties prescribed by this act for any violation of its provisions within or at their establishments, whether committed by themselves or by persons in their employ."

Numerous assignments of error appear in the record; but, inasmuch as more than one of them raise the same question in a different form, it will not be necessary for us to consider each of them separately. The first assignment of error is that the court erred in overruling the defendant's motion in arrest of judgment. The indictment in this case omitted to insert the word "did" in the charging part before the words "unlawfully and knowingly allow and permit one Guy C. Clements, a minor and student of the New Mexico Military Institute, to be and loiter upon and frequent the premises belonging to such saloon, and to engage in games and amusements thereon," etc. No demurrer or motion to quash was filed attacking the sufficiency of the indictment; but, after trial and judgment, a motion in arrest of judgment was interposed, based upon this omission, as a fatal defect in the indictment. The court below overruled the motion, and, as counsel for the defendant contends, committed error in so doing. The omission of the word "did," in the charging part of an indictment for a felony, has been held fatal in the state of Texas, and in some other jurisdictions; but in misdemeanors, where a more liberal rule of pleading prevails, such an omission, appearing to be purely clerical, is not deemed fatal, and, if desirable for completeness of statement, will be supplied by intendment. In State v. Edwards, 19 Mo. 675, the court said: "The omission in this indictment consists of the neglect to insert the word 'did' before the words 'assault, beat and maltreat one Stephen L. Page, in the peace then and there being, and other wrongs,' etc., so as to make the sentence read thus: 'With force and violence, in a turbulent and violent manner, "did" assault, beat and maltreat,' etc. We are inclined to think that this word 'did' may, in this indictment, be supplied by intendment. In indictments for misdemeanors merely, such intendment is often resorted to. The strictness and rigor in construction of indictments for felonies are not applied uniformly to indictments for mere misdemeanors. In the case of State v. Halder, 2 McCord (S. C.) 377, 13 Am.Dec. 738, the omission to insert the word 'did' before the words 'feloniously utter and publish, dispose and pass' was held fatal, and the judgment was arrested. This indictment was for a felony. In the case of the State v. Whitney, 15 Vt. 298, which was an indictment for a misdemeanor, selling liquor by the small measure, without license, the word 'did' was omitted, which should have been joined with the words 'sell and dispose of.' This omission was held not to be fatal on motion in arrest of judgment. Bennet, J., in delivering the opinion of the court, said: 'In this indictment, it is alleged that the respondent, on the 1st day of August, A. D. 1842, at, etc., sell and dispose of, etc. It is evident that the omission is purely a clerical one. The auxiliary verb may be supplied by intendment."' People v. Duford, 66 Mich. 91, 33 N.W. 28; Shay v. People, 22 N.Y. 317.

The omission from the indictment in the present case is so obviously clerical that it cannot reasonably be said that the defendant was misled or prejudiced in pleading to the indictment and going to trial, and it is too late, in a case of misdemeanor, for the defendant to raise this question for the first time by motion in arrest of judgment. In the case of People v. Duford, 66 Mich. 90, 33 N.W. 28, the court said: "If the word 'did' had been used in the place of 'was,' after the word 'situate,' and before 'willfully,' it would have charged the offense positively upon the respondent. This mistake, we think, should be regarded as clerical and formal, and one which did not mislead, or result to the respondent's prejudice. Especially should this be so held in view of the fact that the complaint upon which he was arrested contained the charge correctly stated. If the respondent desired to take advantage of the defect relied upon, he should have demurred or moved to quash." As to whether the omission of the word "did," as in the indictment in this case, would be fatal or not, we do not decide; but, as the charge is a misdemeanor only, and the punishment assessed a fine of $50 and costs, we are of opinion that the court did not err in overruling the motion in arrest of judgment.

In the second, third, fourth, and fifth assignments, it is charged that the court committed error in excluding testimony offered in behalf of the defendant to the effect that the defendant had forbidden minors to loiter in his saloon premises; that he had instructed his employés not to allow minors to loiter about his saloon, and has so instructed O'Conner, who was in charge of the roulette wheel at the time Guy C. Clements was in the saloon. The contention of the defendant is that his good faith evidenced by such instructions to minors and employés constitutes a good defense. The court below excluded this testimony as immaterial, on the ground that the same would not constitute a defense. In Carroll v. State, 63 Md. 551, 3 A. 29, the court said: "The fact that he (saloonkeeper) has given orders not to sell to minors only shows a bona fide intent to obey the law, which all the authorities say is immaterial in determining guilt." In McCutcheon v. People, 69 Ill. 601, the court said "Where, in the absence of a saloonkeeper, a sale of liquor is made by his bartender, the directions of the former not to sell to minors will not exempt him from liability for the sale." Mogler v. State, 47 Ark. 110, 14 S.W. 473; Waller v. State, 38 Ark. 656; Loeb v. Georgia, 75 Ga. 258; Riley v. State, 43 Miss. 397; Dudley v. Sautbine, 49...

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