State v. Halbert
| Decision Date | 13 January 1927 |
| Docket Number | 25720 |
| Citation | 212 N.W. 33,115 Neb. 194 |
| Parties | STATE OF NEBRASKA v. ANDY HALBERT |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county: JOHN B. RAPER JUDGE. Exceptions sustained.
EXCEPTIONS SUSTAINED.
F. N Prout, for plaintiff in error.
John C Mullen, contra.
Heard before ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
In this case a grand jury presented an indictment against the defendant consisting of three counts covering three separate transactions occurring on three separate dates. They were drawn under the provision of section 9803, Comp. St. 1922. The language of each count, excluding the element of time, was identical, and charged that the defendant "did then and there unlawfully and feloniously set up and keep a gaming table, adopted, devised and designed for the purpose of playing with dice, a game of chance for money." To this indictment the district court sustained a motion to quash. The grounds upon which this motion was based are set forth in eight paragraphs thereof, which, so far as importance in this proceeding is concerned, may be epitomized as follows: That the indictment did not state facts sufficient to constitute an offense of either the grade of felony or misdemeanor or notify the defendant of the offense to which he was required to answer. Exceptions to this ruling were taken by the county attorney, and under section 10192, Comp. St. 1922, were presented to this court, John C. Mullen, Esq., appearing under appointment of the trial judge to argue the case against the prosecuting attorney.
The principle of constitutional law "that in all criminal prosecutions the accused shall have a right to demand the nature and cause of accusation and to have a copy thereof" is not questioned in this proceeding. The real issue is, has the constitutional provision been properly interpreted and applied in the instant case?
The general rule in this state is that, "to charge a statutory offense, the information or indictment must contain a distinct allegation of each essential element of the crime as defined by the law creating it, either in the language of the statute or its equivalent." Barton v. State, 111 Neb. 673, 197 N.W. 423. See, also, Newby v. State, 75 Neb. 33, 105 N.W. 1099; Altis v. State, 107 Neb. 540, 186 N.W. 524; Gaweka v. State, 94 Neb. 53, 142 N.W. 287; Jones v. State, 112 Neb. 710, 200 N.W. 1005; Moline v. State, 67 Neb. 164, 93 N.W. 228.
The question presented is strictly a matter of pleading, and to it the discussion will be limited.
In support of the position of the district court, we are cited to State v. Wade, 267 Mo. 249, 183 S.W. 598; State v. Brown, 118 Kan. 603, 236 P. 663.
In State v. Wade, supra, the information charged that the defendant "did then and there wilfully, unlawfully and feloniously set up and keep a certain table and gambling device, commonly called a crap table, which said crap table was then and there and on said other days and times a gambling device adapted, devised and designed for the purpose of playing games of chance for money and property; and did then and there * * * unlawfully and feloniously induce, entice and permit certain persons, to wit, * * * to bet and play at and upon a game played on and by means of such gambling device."
"The information in this cause is bottomed on section 4750, Revised Statutes 1909, which is as follows: 'Every person who shall set up or keep any table or gaming device commonly called A B C, faro bank, E O, roulette, equality, keno, slot machine, stand or device of whatever pattern, kind or make, or however worked, operated or manipulated, or any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property, and shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played or by means of such table or gambling device or on the side or against the keeper thereof, shall, on conviction,'" etc.
The evidence discloses that the tables in actual use were pool tables with a crap layout on them and that craps was actually being played thereon. In the opinion it is said: State v. Wade, supra.
If it be conceded that the application of this rule is required by the terms of the Missouri statute and that certain kinds of "gambling tables" or "gambling devices," appropriately described by its general language, were not of the same general class as "A B C, faro bank, E O, roulette, keno," etc., it would logically follow that the language of the information in State v. Wade, supra, was broader than the statute on which it was based and therefore defective. To that extent this case sustains defendant's contention.
As to the case of State v. Brown, 118 Kan. 603, 236 P. 663, so far as it applies to the question of pleading here presented, it does not at all sustain the defendant's contention.
It is true that the terms of the Missouri statute substantially appear as the Kansas act before the court in the case last mentioned. But the Kansas court, in answer to the contention that the doctrine of ejusdem generis was controlling in the interpretation of the Kansas statut...
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