State v. Halbert
| Decision Date | 13 January 1927 |
| Docket Number | No. 25720.,25720. |
| Citation | 212 N.W. 33,115 Neb. 194 |
| Parties | STATE v. HALBERT. |
| Court | Nebraska Supreme Court |
STATE
v.
HALBERT.
No. 25720.
Supreme Court of Nebraska.
Jan. 13, 1927.
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, and that an information so doing is ordinarily sufficient.
In charging an offense under section 9803, Comp. St. 1922, it is not essential to include therein a charge that the defendant gambled on the device with others, or permitted others to gamble thereon.
In charging a statutory crime where the statute contains an exception, the general rule is that the information should properly negative such exception, but where the allegation covers the affirmative part of the statute and clearly involves a negation of the other, no further negative need be added, and it is unnecessary for the pleader to refer to the exception.
Information in this case examined and held sufficient.
Appeal, on Exception, from District Court, Richardson County; Raper, Judge.
Andy Halbert was prosecuted for a violation of the gaming laws, and, after quashing the indictment, exception taken by the county attorney was presented, under Comp. St. 1922, § 10192, to the Supreme Court. Exception sustained.
F. N. Prout, of Falls City, for the State.
John C. Mullen, of Falls City, for appellee.
[212 N.W. 34]
Heard before MORRISSEY, C. J., and ROSE, DEAN, DAY, GOOD, THOMPSON, and EBERLY, JJ.
EBERLY, J.
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?
[1] The general rule in this state is that:
“To charge a statutory offense the information 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 willfully, 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. State v. Wade, supra.
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:
“In construing statutes we have so frequently applied the familiar rule of ejusdem generis, that we...
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