Compton v. State

• Decision Date: 26 February 1936
• Docket Number: No. 17981.,17981.
• Parties: COMPTON v. STATE.
• Court: Texas Court of Criminal Appeals

91 S.W.2d 732

COMPTON v. STATE.

No. 17981.

Court of Criminal Appeals of Texas.

February 26, 1936.

Commissioners' Decision.

Appeal from District Court, Duval County; L. Broeter, Judge.

A. H. Compton was convicted of keeping a gambling place, and he appeals.

Reversed, and prosecution ordered dismissed.

Robert R. Mullen, Jr., of Alice, and H. K. Harrelson, of San Diego, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was tried and convicted of keeping a place to gamble with cards, dice, or dominoes, and where people then and there resorted to gamble with cards, dice, or dominoes; and his punishment was assessed at confinement in the State Penitentiary for a term of two years.

The first contention made by the appellant is that the court erred in overruling his motion to quash the indictment in this case for the reasons: (a) That the indictment does not charge an offense against the laws of the state of Texas; (b) because the indictment is vague and indefinite and does not apprise this defendant as to what he must defend against, etc. The indictment, omitting the formal parts, reads as follows: "That A. H. Compton on or about the 1st day of January A. D., 1934, and anterior to the presentment of this indictment, in the county of Duval, and State of Texas, did then and there unlawfully keep and was then and there interested in keeping a certain building, room and place to bet and wager, and to gamble cards, dice and/or dominoes then and there played; and as a place where people did then and there resort to gamble, bet and wager on games played with cards, dice and/or dominoes against the peace and dignity of the State."

At the very threshold of this case, we are confronted with the onerous task of determining what is meant by the word or symbol "and/or" appearing in the indictment. If the pleader meant the conjunctive, he should have employed the word "and"; but if he meant to express the disjunctive, he should have used the word "or"; to use both leads to uncertainty and confusion. The primary requisite of criminal pleading is definiteness and certainty, so that nothing is left to inference or intendment. The American Bar Association Journal, in commenting on the growing use of "and/or," said: "It is indicative of confused thought and should have no place in either a statute or legal document as `and/or' makes confusion worse confounded." In the case of Tarjan v. National Surety Company, 268 Ill.App. 232, the court, speaking through Justice O'Connor, said: "The use of this symbol arises in part from a doubt as to which of the two words should be used. Is it any solution of this doubt to leave the question to be solved by construction at a later time? We venture the assertion that any man who knows the meaning of the two words and the established distinctions in their use can take a modern contract or statute, bristling with this symbol, strike out every one of them and substitute the proper one of the two words, to the great clarification of the meaning of the instrument or act."

It is apparent, from the face of the indictment charging that the place was used to bet and wager and to gamble cards, dice, and/or dominoes then and there played, where people resorted to gamble, bet, or wager on games played with cards, dice,...