Roberts v. State

• Decision Date: 11 October 1900
• Docket Number: 3,510
• Citation: 58 N.E. 203,25 Ind.App. 366
• Parties: ROBERTS v. THE STATE
• Court: Indiana Appellate Court

58 N.E. 203

25 Ind.App. 366

ROBERTS v. THE STATE

No. 3,510

Court of Appeals of Indiana

October 11, 1900

From the Monroe Circuit Court.

Affirmed.

J. R East, R. H. East and J. E. Kelley, for appellant.

W. L Taylor, Attorney-General, Merrill Moores and C. C. Hadley for State.

OPINION

WILEY, J.

Appellant was prosecuted and convicted for visiting a gambling house, and his motion for a new trial was overruled. He has assigned errors (1) that the court erred in overruling his motion to quash the affidavit and information; (2) that the court erred in overruling his motion for a new trial. We will discuss and decide these questions in the order named.

The affidavit and information rest upon § 2089 Burns 1894, § 2002 Horner 1897. That section defines several offenses, but when applied to the offense charged against appellant is as follows: "Whoever, being a male person, * * * frequents or visits a gambling house or houses, * * * shall be fined," etc.

The charging part of the affidavit is that the appellant "on the 31st day of May, A. D. 1899, at and in the county of Monroe and State of Indiana, being a male person, did unlawfully visit for the purpose of gaming a certain place where gambling was permitted, to wit, a certain room, then and there occupied by one Walter Neeld, situate," etc. The information is substantially in the same language.

A change of venue being taken from the regular judge, Hon. G. L. Reinhard was appointed special judge to try the case.

The objection urged to the affidavit and information is that they only charge appellant with having made a single visit to a gambling house, and that a single visit is not an offense within the meaning of the statute. Counsel for appellant say that since the statute was amended in 1889, it has not been construed by a court of last resort. A brief review of the history of legislation upon the subject-matter of the statute, and the decisions of the court thereunder, may materially aid in its construction and in arriving at the intention of the legislature in enacting it.

We do not deem it necessary to go back in legislative history farther than the revision of 1881. At that time, the language of the statute was: "Whoever being a male person, * * * frequents gambling houses," etc. § 2002 R. S. 1881. The word "visit" or "visits" did not occur in the statute. At that time there was also a statute defining a "common gambler", and that statute was as follows: "Whoever, for the purpose of gaming with cards or otherwise, travels about from place to place, or frequents any place where gambling is permitted, or engages in gambling for a livelihood, is a common gambler," etc. § 2085 R. S. 1881.

In the case of Green v. State, 109 Ind. 175, 9 N.E. 781, appellant was indicted for frequenting a gambling house, and on trial was convicted. The evidence showed that at the time charged appellant was seen at the room designated engaged in a game where money was wagered, but there was no evidence to show that he had ever been there at any other time. Upon this evidence the Supreme Court reversed the judgment on the ground that proof of one visit to a gambling house was not sufficient to sustain an indictment for frequenting a place where gambling was permitted. The court by Niblack, J., said: "Proof of an occasional visit to a house in which gambling is permitted is not sufficient to sustain a conviction in a case like the one before us. To make the frequenting of such a house a misdemeanor, it must be something akin to, or in the nature of, a habit." This decision was rendered January 12, 1887. In 1889 the legislature amended section 2002, supra, and that section as it now is reads as follows: "Whoever, being a male person, frequents or visits a house or houses of ill-fame or of assignation; * * * or frequents or visits a gambling house or houses; * * * shall be fined," etc. Counsel for appellant argue that the word "visits", as used in the statute, is plural, and as only one visit is charged against the appellant, the affidavit and information do not charge an offense as defined by the statute. We think this argument is fallacious. The word "visits," as it is used in the statute, is a verb, and as used is singular, and not plural. It would have been an unpardonable grammatical error for the legislature to have used the word "visit" where the word "visits" occurs. We have no doubt but what the legislature, in the exercise of its police powers, could make it an offense for a person to make a single visit to a gambling house or houses, and this is just what it intended to do in the amended section of the statute under which this prosecution is waged. And we do not know how such intention could have been more distinctly or clearly expressed. It will be observed that the same language is used relating to visiting a house or houses of ill-fame, as that employed in defining an offense for frequenting or visiting a gambling house. Counsel for appellant certainly would not contend that before a person could be convicted of visiting a house of ill-fame he would have to be charged with frequently visiting it, and the proof made to harmonize with the charge. It was the intention of the legislature to guard the morals of the citizens so far as it was possible, and to forbid any one from visiting such places of iniquity. The mere statement of the fact of a single visit by a male person to a house of ill-fame is its own argument in support of the proposition that a charge of such visit and proof thereof would sustain a conviction under the express language of the statute. It is to be remembered that we are not discussing what would constitute "frequenting" such places. There is a wide difference between the words "frequenting" and "visits," as used in the statute. The former means to visit often; to resort to often or habitually, etc. Webster's Dict. It was this very meaning of the word "frequents", and the construction put upon it by the courts, that prompted the legislature to amend the statute in 1889, so that the intention of the legislature might become manifest, and the violation of its prohibition be properly punished. We think there can be no doubt about this proposition, that a single visit to a gambling house is a misdemeanor within the meaning of the statute, a violation of its provisions, and hence must hold that the offense is sufficiently charged in the affidavit and information. The motion to quash was properly overruled.

Appellant's motion for a new trial was based upon the following grounds: (1) Insufficiency of the evidence; (2) no evidence to sustain the finding; (3) the finding is contrary to law; (4) the finding is contrary to the law and the evidence. It is earnestly urged that there is no evidence to support the finding and judgment.

The evidence shows that on the day charged in the indictment two police officers went to the room rented and occupied by one Walter Neeld. This visit of the officers was made between 1 and 2 o'clock in the morning. They found there the defendant and six other men. These officers testified that two of the occupants were playing cards; that one of the parties playing had $ 1.50 in money in front of him; that both parties playing had poker chips in front of them; that there were poker chips in the middle of the table; that the appellant was sitting at the table where the playing was going on; that the table was round with a cloth top; that there was a drawer in the table; that said Neeld, the occupant of the room, was sitting at the table by the drawer and dropped in a check or two once in a while, which he took from the center of the table. The evidence further shows that the room in question was immediately over a saloon kept by one Strothers, who was one of the parties playing cards; that no one lived over the saloon, and that all the furniture in the room was a poker table, a few chairs and a sofa. The appellant admitted that he was at the room the night in question, and testified that it was the only time he was ever there; that he was invited there on that night by Neeld, the occupant, to have some lunch; that some lunch was brought that he ate a part of it; that he did not see any one gambling; that he did not know the room was a place where gambling was permitted; that he did not see any money on the table. Neeld testified that on the night in question he invited the appellant and others up to his room to have some lunch; that he rented the room for an office, and used it for the purpose of an architect's or contractor's office; that he found there a table, some chairs, some poker chips, and a few other articles; that he went out and got some lunch; that two of the party, Strothers and Nicholson, engaged in a game of seven-up; that he counted the points made, with the poker chips; that there was $ 1.50 on the table which belonged to Nicholson, being the...