State v. Dawson
| Decision Date | 25 February 1936 |
| Docket Number | 8254. |
| Citation | 184 S.E. 253,117 W.Va. 125 |
| Parties | STATE v. DAWSON. |
| Court | West Virginia Supreme Court |
Submitted February 4, 1936.
Syllabus by the Court.
An indictment under Code, 61-10-1, which charges the keeping 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.
Reversed and dismissed.
HATCHER President, dissenting.
T. C. Townsend, E. S. Bock, Ben Moore and Dale G. Casto, all of Charleston, for plaintiff in error.
Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for the State.
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. O. 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:
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 ev er been advanced in support of this exception. In the case of Morgan v. Commonwealth, 48 Va. (7 Grat.) 592, decided in 1850, the Virginia court affirmed a conviction under an indictment charging that the accused "did sell by retail, to be drank 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 effect of cases involving the sale of intoxicating liquor was State v. Charlton, 11 W.Va. 332, 27 Am.Rep. 603, in which Judge Green, speaking for the court, in the opinion discussed Morgan's Case and refused to extend the exception to the general rule to a case not involving the description of different kinds of intoxicating liquor. Charlton's Case, as a matter of fact, was a prosecution for the unlawful sale of intoxicating liquor, but use of the disjunctive in the indictment arose in connection with the charge that the defendant had sold intoxicating liquor without a license to be drunk "in, upon, or about the building or premises where sold." The indictment was held bad. The question arose again in State v. Miller, 68 W.Va. 38, 69 S.E. 365, under an indictment charging disjunctively that the accused had practiced dentistry without a license by doing one or more of several acts described disjunctively in the statute as constituting the practice of dentistry. The charge, following the language of the statute, was laid disjunctively. The indictment in that case was held bad, the court discussing the decision of Morgan's Case and stating: "The principle of the exception has been questioned, if not disapproved, by this court, and the inclination is not to extend it."
But the state argues that since the terms used to describe the gaming devices in Code, 61-10-1, are synonymous in the sense that they are all games wherein the chances are unequal with the chances favoring the operator of the game the words "to wit" may be substituted for the word "or," thus demonstrating that the case does not fall within the general rule. The state cites the case of State v. Newsom, 13 W.Va. 859, in which an indictment for malicious wounding was sustained where the instrument of the crime was described as "a certain pistol or revolver." The Newsom Case was reversed on other grounds, and the opinion does not discuss the rule of disjunctive allegations, citing no authority other than Bishop's Crim. Pro., paragraph 229. This is a miscitation in so far as the editions of Bishop's Criminal Procedure available to us are concerned. The state also cites 31 C.J. 664; note, 51 L.R.A. (N.S.) 133; Henderson v. State, 113 Ga. 1148, 39 S.E. 446; People v. Farrell, 349 Ill. 129, 181 N.E. 703, and People v. Lavendowski, 329 Ill. 223, 160 N.E. 582. These authorities sustain the proposition that, in an indictment, terms which are synonymous in the sense of being merely a repetitious explanation of what precedes may be separated by the word "or" used in the sense of "to wit." But we do not believe that the indictment here in question, naming, as it does, several and different acts, any one of which constitutes the generic offense defined in the statute, falls within that category. A reference to any fairly good encyclopedia, we believe, will demonstrate, even to the uninitiated in such matters, the confusion that would manifestly result in charging a person with exhibiting a "faro bank, to-wit, a keno table." The two games named, as disclosed by the descriptions of them in the encyclopedia, are different, involve different chances, and are played under different rules. To prove the exhibiting of one, would have no relation to the other. The names describing them cannot be treated as synonymous. This statute has been applied to a "slot machine." State v. Gaughan, 55 W.Va. 692, 48 S.E. 210. Could one call that term a synonym of "faro bank?" The synonymity urged by the state is that all of the games described in the statute are of the same generic nature in that they all must involve uneven chances with the chances in favor of the exhibitor. The accused points out that this indictment does not contain the charge that he was operating a game of uneven chances with the chances in favor of the operator of the game. However this may be, we are impressed with the fact that the contention of the state, if sustained, would likely destroy the effect of...
To continue reading
Request your trial