State Of West Va. v. Dawson, (No. 8254)
| Citation | 117 W.Va. 125 |
| Decision Date | 25 February 1936 |
| Docket Number | (No. 8254) |
| Court | Supreme Court of West Virginia |
| Parties | State of West Virginia v. C. L. Dawson |
State of West Virginia
v.
C. L. Dawson
Supreme Court of Appeals of West Virginia.
Submitted February 4, 1936.
Decided February 25, 1936.
Indictment and Information
An indictment under Code, 61-10-1, which charges the keeping
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and exhibiting of several different sorts of gaming devices, naming them in the disjunctive, is bad on demurrer.
Error to Circuit Court, Kanawha County.
C. L. Dawson was convicted of violation of Code 1931, 61-10-1, on charge of unlawfully keeping and exhibiting gaming tables, and he brings error.
Judgments reversed; verdict set aside; case dismissed.
Hatcher, President, dissenting.
T. C. Townsend, E. S. Bock, Ben Moore and Dale G. Casto, for plaintiff in error.
Homer A. Holt, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for the State.
Kenna, Judge:
C. L. Dawson was convicted in the Intermediate Court of Kanawha County of a violation of Code, 61-10-1, the charging part of the first count of the indictment being that he did "unlawfully keep and exhibit gaming tables commonly called A. B. C. and E. 0. tables or faro bank or keno tables and other gaming tables and devices of like kind, against the peace and dignity of the State." The second count of the indictment charges that Dawson was "concerned in interest" in keeping and exhibiting gaming tables, describing them in the same language by which they are described in the first count.
Dawson appeared, pleaded not guilty, and demanded a bill of particulars. This demand was refused. A demurrer to, and a motion to quash, the indictment were entered and overruled. The State proceeded to proof. Dawson moved to strike out the testimony of each witness for the state, and at the conclusion of the state's case moved to strike out all of the state's proof. He tendered no proof on his own behalf, and, after verdict against him, moved to set aside the verdict and in arrest of judgment. His contentions, as presented by the record, are the following:
[117 W.Va. 127]
First. That the indictment is bad because of the fact that the section under which he stood indicted describes offenses that are committed by the keeping and exhibiting of gaming tables of different kinds, named in the disjunctive, and the fact that the indictment names the different kinds of gaming tables that Dawson is accused of keeping and exhibiting also in the disjunctive, so that, from a reading of the indictment, the accused could not tell which of the different kinds of gaming tables named in the statute he was accused of keeping and exhibiting, and, furthermore, that under the indictment here, an order showing conviction and sentence could not be pleaded in bar of a subsequent prosecution for exhibiting any one of the gaming devices named in the indictment.
Second. That the proof offered by the state at the trial does not show that the defendant kept and exhibited one of the kinds of gaming tables specifically named in the statute, nor does it show that he kept and exhibited "other gaming tables and devices of like kind" within the meaning of the statute, that is to say, gaming devices, the playing of which brings into operation unequal chances with the chances favoring the operator or exhibitor.
Third. That the order of conviction directs the destruction of all of the property of Dawson seized under the search warrant, which includes money not shown to have been "staked or exhibited to allure persons to bet at such tables," and other property not authorized by the statute to be seized.
It is a time-honored and rudimentary rule of criminal pleading that where a statute describes several offenses, or several different modes of committing an offense, separating them by the disjunctive "or," the pleader, if he desires to include them all in the indictment, should do so by connecting them with the conjunctive "and." This rule has been repeatedly recognized in this jurisdiction and in the state of Virginia, the only exception to it that is established in either jurisdiction being the case of indictments for the sale of intoxicating liquor. No sound reason has ever been advanced in support of this excep-
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tion. In the case of Morgan v. Commonwealth, 48 Va. (7 Graft.) 592, decided in 1850, the Virginia court affirmed a conviction under an indictment charging that the accused "did sell by retail, to be drunk in his house, rum, wine, brandy, or other spirituous liquors." The court wrote no opinion, simply declaring that the judgment was affirmed. The same rule was applied in Cunningham v. State, 5 W. Va. 508, Judge Berkshire, who wrote the opinion of the court, declaring, however, that if the question were open, he would be disposed to think that there was much force in it, but that the court was bound by the decision of the Virginia Court in Morgan's case. The next West Virginia case to discuss the rule and the exception from its...
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