Douglas v. State

• Citation: 18 Ind.App. 289,48 N.E. 9
• Parties: DOUGLAS v. STATE.
• Decision Date: 26 October 1897
• Court: Court of Appeals of Indiana

18 Ind.App. 289

48 N.E. 9

DOUGLAS

v.STATE.

Appellate Court of Indiana.

Oct. 26, 1897.

Appeal from circuit court, Marion county; Charles F. Coffin, Special Judge.

Samuel L. Douglas was convicted of a crime, and appeals. Affirmed.

James M. Cropsey and Elmer Marshall, for appellant. Chas. S. Wiltsie, Pros. Atty., W. A. Ketcham, Atty. Gen., and C. C. Hadley, for the State.

ROBINSON, J.

The appellant was convicted for keeping certain devices for the purpose of registering bets and wagers. The indictment reads as follows: “The grand jurors for the county of Marion and state of Indiana upon their oaths present that William Tron and Samuel L. Douglas, on the 11th day of May, A. D. 1895, at and in the county of Marion and state aforesaid, did then and there unlawfully keep a certain room there situate, with apparatus, blackboard, blanks, papers, and other devices for the purpose of recording and registering bets and wagers upon the results of trials and contests of skill, speed, and power of endurance of man and beasts, and did then and there keep and exhibit apparatus, blackboards, blanks, papers, and other devices for the purpose of registering bets and wagers upon the results of trials and contests of skill, speed, and power of endurance of man and beasts, contrary to the form of statute in such case made and provided, and against the peace and dignity of the state of Indiana.” Section 2179, Burns' Rev. St. 1894 (section 2084, Horner's Rev. St. 1897), upon which the indictment is based, reads: “Any person who shall keep any room or building or any portion of any room or building, or occupy any place or public or private grounds anywhere within the state with apparatus, books, or other devices for the purpose of recording or registering bets or wagers or of selling pools; and any person who shall record or register bets or wagers or sell pools upon the result of any trial or contest of skill, speed, or power of endurance of man or beast; or, being the owner, lessee, or occupant of any such rooms, building, part or portion thereof, shall knowingly permit the same to be used or occupied for any of the purposes aforesaid; or shall therein keep, exhibit, or employ any device or apparatus for the purpose of registering or recording such bets or wagers or for the selling of such pools; or shall become the custodian or depository, for hire or reward, of any money, property, or other thing of value staked, wagered, or pledged, as aforesaid, upon any such results,–shall be deemed guilty of a misdemeanor, and shall, upon conviction, be fined not more than five hundred dollars nor less than five dollars, or imprisoned in the county jail for not more than six months nor less than ten days.” This section of the statute defines several acts that would constitute a crime, which may be briefly stated: (1) Any person who shall keep a room or building with apparatus or other devices for the purpose of recording or registering bets or wagers; (2) any person who shall record or register bets or wagers or sell pools upon the result of any trial or contest of skill, speed, or power of endurance of man or beast; (3) any person, being the owner of a room or building, who shall knowingly permit it to be used or occupied for the purposes aforesaid; (4) any person who shall keep, exhibit, or employ any device or apparatus for the purposes of recording or registering such bets; (5) any person who shall become the custodian or depository, for hire or reward, of any money, property, or other thing of value staked or wagered upon any such results aforesaid,–shall be, etc. It is argued that it takes both the first and second divisions, as above set out, to constitute an offense, for the reason that they are joined by the conjunction “and.” But we do not believe such to have been the intention of the legislature. To give the section such a construction, the words “any person” must be omitted from the second division, which would be a violation of the well-settled rule that in construing a statute such meaning will be given to the words of the statute construed as will make them all effective, unless by so doing the purpose of the legislature will be defeated. It is made an offense for any person to keep a room with devices for betting, and it is also an offense for any person to record or register bets upon certain things specified. The “any person” in the second division cannot be said to be the “any person” used in the first division, and the word “and,” connecting the two, might properly be read “or.” It is clear that the legislature intended by the language used to state two distinct offenses. Streeter v. People, 69 Ill. 595;State v. Myers, 10 Iowa, 448;Miller v. State, 3 Ohio St. 475. It has long been settled by the decisions in this state that where a statute makes it a crime to do any one of several things, and they are stated disjunctively, the whole may be charged conjunctively in a single count. Davis v. State, 100 Ind. 154;State v. Stout, 112 Ind. 245, 13 N. E. 715;Fahnestock v. State, 102 Ind. 156, 1 N. E. 372.

It is urged that that part of the statute upon which the second division of the indictment is based simply refers to the recording or registering of bets or wages generally, and that it does not mention “trials or contests of skill, speed, or power of endurance of man or beast.” In that view of it, the added words would be mere surplusage, and would not render the indictment bad. But we think these words are not mere surplusage, but are properly made a part of that division. That part of the section upon which this division of the indictment is based refers to recording or registering “such bets.” The only bets specified in the statute are those named in the indictment, and the word “such” uld have reference only to what has been before enumerated in the statute.

Appellant's counsel argue that, as the statute does not specifically state what acts constitute the offense, the indictment is not sufficient if it only follows the statute, but that the particular acts must be stated with reasonable certainty. The gist of the crime charged is keeping certain apparatus for the purpose of registering bets or wagers. The language of the statute itself is sufficiently plain, and defines with sufficient certainty the elements of the crime. The defendant is charged with keeping certain devices for unlawful purposes, and it is not material whether he had a customer or not. The indictment properly charges two of the offenses named in the statute, and the motion to quash was...