Likos v. State, 7 Div. 322.

Decision Date08 March 1938
Docket Number7 Div. 322.
Citation28 Ala.App. 231,182 So. 81
PartiesLIKOS v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied April 5, 1938.

Affirmed on Mandate June 7, 1938.

Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.

George Likos, alias Likus, was convicted of operating a gambling device, and he appeals.

Reversed and remanded.

Certiorari granted by Supreme Court in Likos v. State, 7 Div. 514, 182 So. 82.

Motley & Motley, of Gadsden, for appellant.

A. A Carmichael, Atty. Gen., and B. W. Simmons and Silas C Garrett, III, Asst. Attys. Gen., for the State.

The points of decision involved upon this appeal are identical to the questions considered and decided by this court in the case of George Mastoras v. State, 180 So. 113. Upon the authority of Mastoras v. State, supra, the judgment of conviction from which this appeal was taken is reversed and the cause remanded.

Reversed and remanded.

On Rehearing.

The sole question involved upon this appeal, is the sufficiency of count 1 of the indictment. It is conceded that the verdict of the jury eliminated the second count.

Count 1 is fatally defective and void in failing to charge an offense. Under the statute an indictment must state the facts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. By no stretch of imagination could it be said that this statutory requirement has been complied with. In the first instance, from the terms of the indictment, it would be a physical impossibility for the accused to know with what offense he was charged, and render it possible for him to prepare and present a defense thereto and certainly no court, in the absence of other information could on conviction be able to pronounce the proper judgment. The purpose of our laws is in effect that the punishment should fit the crime; that is to say, for a minor offense, a minor punishment, only, should be inflicted. For a more serious offense a heavier punishment would be but proper, etc. In the event that a defendant should interpose a plea of guilty to an indictment as the one under discussion, how could the court be able to pronounce a proper judgment, and inflict a punishment commensurate with the crime. An indictment of this character could be made to apply to the keeper of a notorious gambling establishment, wherein unlimited sums of money and other things of value could be wagered; and, on the other hand, could likewise apply to an inoffensive game of chance, wherein the sum of 1 penny or like amount might be involved in a game some times called "African Golf," or, perhaps better known as "craps," often indulged in by inoffensive little darkies whose combined wealth would probably amount to the sum total of 10 cents. As to these divergent illustrations, and others of like character, no one would contend that on conviction the same severity of punishment should be inflicted by the trial tribunal.

The judgment of this court in the...

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