Davis v. State

• Decision Date: 13 February 1885
• Docket Number: 12,137
• Parties: Davis v. The State
• Court: Indiana Supreme Court

100 Ind. 154

Davis v. The State

No. 12,137

Supreme Court of Indiana

February 13, 1885

From the Bartholomew Circuit Court.

Judgment affirmed with costs.

M. D Emig, for appellant.

F. T Hord, Attorney General, W. Dixon, Prosecuting Attorney, and W. B. Hord, for the State.

OPINION

Zollars C. J.

Appellant contends that the indictment is bad for duplicity, and that, therefore, the court below erred in overruling the motion to quash. The prosecution is under section 2079, R. S. 1881, which provides that whoever keeps a building, etc., to be used or occupied for gaming, or knowingly permits the same to be used or occupied for gaming, or whoever, being the owner of any building, etc., rents the same to be used or occupied for gaming, shall be fined not more than five hundred nor less than ten dollars.

The indictment is in one count. That portion which charges and describes the offence is as follows: "That one John M. Davis, * * on the 1st day of January, A. D. 1883, and on divers other days and times between that day and the making of this presentment, was the keeper, manager, and tenant occupying a certain building, * * * * and did then and there, and on the said divers other days and times between that time and the making of this presentment, unlawfully and knowingly permit and suffer George Mitchell, * * * * and divers other persons, to the grand jury unknown, to be and remain, playing and gaming therein at the unlawful games of faro and poker, * * * for money, * * * and did then and there on said 1st day of January, A. D. 1883, and on said divers other times and days between said time and the making of this presentment, unlawfully keep said building to be used and occupied for gaming, contrary," etc.

The argument is that the above section of the statute defines three separate offences: First. The keeping of a building to be used, etc., for gaming; Second. Knowingly permitting the same to be used, etc., for gaming; and, Third. The renting of a building by the owner to be used for gaming. And that the indictment charges two of these offences in the same count, and is, therefore, double.

A case involving a statute similar to that involved here, came before this court in 1850. In that case, the indictment charged in the same count, that the defendant kept, and suffered his house to be used for gaming. It was insisted that the indictment was bad, because it charged two offences. It was held that it charged but one offence. Dormer v. State, 2 Ind. 308. In support of the ruling, the court cited the case of State v. Slocum, 8 Blackf. 315, where it was held that an indictment in one count, charging that the defendant maliciously, etc., destroyed and injured, and caused to be destroyed and injured, a certain mare, etc., was not objectionable for multifariousness or uncertainty, under a statute which provided that every person who should maliciously, etc., destroy, etc., or cause to be destroyed, etc., any property of another, should be guilty, etc.

In the case of Sowle v. State, 11 Ind. 492, a statute, in all essentials similar to the present statute, was involved. The prosecution was upon an information. After setting out the statute, the court said: "The first branch of the above section contemplates two offences--first, the keeping of a building, etc., for gambling; and second, suffering gambling in his building. * * * In the latter case," (Dormer v. State, supra) "a question was made as to duplicity--the indictment charging that the defendant kept, and suffered his house to be used, for gaming, etc. The Court held that the indictment was not double, which was undoubtedly a correct ruling, for the obvious reason that, if the defendant kept his house for gambling, it could neither add to, nor diminish from the offence that he suffered it to be used for the purpose for which it was kept. The latter was merged in the former." The indictment in the case of Crawford v. State, 33 Ind. 304, charged that the defendant unlawfully kept and suffered a certain building, etc., to be used for gaming, and then and there unlawfully suffered Michael Beck, James A. Stretch, etc., to play at a certain game, commonly called billiards, for money, etc. It will be observed that this indictment was very similar to the one before us, except in the order of statement. It was claimed there, that the indictment was bad for duplicity. The court said: "This question has been settled in this court against the appellant," and cited the cases of Dormer v. State, supra, and State v. Slocum, supra. The same question, under the same statute, and upon an indictment in all respects the same as that before us, except in the order of statement, came before the court again in the case of Padgett v. State, 68 Ind. 46, and upon the authority of the case of Crawford v. State, supra, the indictment was held sufficient. In the later case of State v. Pancake, 74 Ind. 15, the indictment charged that the defendant kept a house for gaming, by permitting certain named persons to gamble therein for money. After citing what was said in the case of Sowle v. State, supra, about the statute contemplating two offences, viz., the keeping of a building for gaming, and permitting gambling therein, it was held that the indictment sufficiently charged the keeping of the building for gambling, without aid from the averments which followed it, and that the portion in relation to the character of the games played, and the persons who played them, might be regarded as surplusage, and would not render the indictment bad.

The indictment in that case is not so similar to the one before us as the indictments in the other cases cited, for the reason that the word "by," indicates that what followed it was in support of the charge that the house was kept for gambling. These are the only cases that we have found in our search, in which the question here involved has been adjudicated by this court. In all of them it is conceded, and in some of them held, that the section of the statute defines the offences of keeping a house for gaming, renting a house for gaming, and permitting gaming in such a house, as separate offences, and in all of them it was held that an indictment, charging in one count two of the offences, is not bad for duplicity. None of them give a very satisfactory reason for the holding, unless, perhaps, the case of Sowle v. State, supra, and the case of State v. Pancake, supra, which, as we have seen, involved a differently framed indictment.

The purpose...