State v. Hudson

Decision Date19 March 1946
Docket Number9763.
Citation37 S.E.2d 553,128 W.Va. 655
CourtWest Virginia Supreme Court
Concurring Opinion March 23, 1946.

Syllabus by the Court.

1. Ordinarily an indictment, containing several counts, which in each count, states an offense substantially in the words of the statute which creates it, is sufficient on motion to quash and on demurrer.

2. The granting or the refusing of a bill of particulars in a criminal case is in the sound discretion of the trial court and its refusal to require a more specific bill of particulars is not ground for reversal unless it is clear that such refusal results in prejudice to the defendant which amounts to an abuse of sound discretion.

3. In a criminal case proof of another offense chargeable to the defendant is admissible to show motive or intent, if such other offense is similar and near in point of time to, has some logical connection with, and tends to establish the commission of, the specific offense charged against the defendant, and indicates that such specific offense is part of a system of criminal action.

4. The essential elements of a lottery are consideration, prize and chance; and any scheme or device, by which a person, for a consideration, is permitted to receive a prize or nothing as may be determined predominately by chance, is a lottery.

5. A punch board which, for a consideration, entitles the holder of a lucky number to a prize which results predominately from chance, is a lottery.

6. A verdict of guilty in a criminal case, which is without sufficient evidence to support it, will be set aside by the appellate court.

LOVINS and FOX, JJ., dissenting.

W. Hayes Pettry, of Charleston, for plaintiff in error.

Ira J. Partlow, Atty. Gen., and Ralph M. Hiner, Asst. Atty. Gen., for defendant in error.


The defendant, Okey Hudson, having been found guilty by a jury, in the Intermediate Court of Kanawha County, of violating Section 11, Article 10, Chapter 25, Acts of the Legislature, 1939, was, on February 7, 1945, sentenced to pay a fine of $500, to confinement in the county jail for twelve months, and to work upon the roads of the county during the term of his imprisonment and until the payment of the fine and the costs. The Circuit Court of Kanawha County, by order entered May 14, 1945, denied his petition for a writ of error and supersedeas to the foregoing judgment on the ground that the action of the trial court was plainly right. The case is here on writ of error to the judgment of the Circuit Court.

Okey Hudson, Geneva Beane Veltri, and James Aleff were jointly indicted, and, each having demanded a separate trial, the State elected to try the defendant Hudson. The indictment contains five counts. The first count charges that the defendants unlawfully did set up and promote and were concerned in managing a lottery and raffle, for money and other things of value. The second count charges that the defendants did knowingly and unlawfully permit the lottery described in the first count in premises under his control. The third count charges that the defendants did knowingly and unlawfully permit money and other property to be raffled for in premises under his control. The fourth count charges that the defendants did knowingly and unlawfully permit the sale in premises under his control of chances and tickets, and shares of tickets, in a lottery, and in writings, certificates, bills, tickets, and devices purporting and intending to guarantee and assure to any person, and to entitle such person, to a prize, and a share of and interest in, a prize to be drawn in a lottery. And the fifth and last count charges that the defendants did knowingly and unlawfully buy and sell, transfer, have in his possession, for the purposes of sale, and with intent to exchange, negotiate, and transfer, chances and tickets and a share of tickets, in a lottery and other such writing, bill, token and device. The offenses charged in the various counts are alleged to have been committed in Kanawha County within one year next prior to the finding of the indictment; and each count of the indictment concludes against the peace and dignity of the State.

Before the trial, the defendants filed their motion, supported by affidavit, that the court require the State to file a bill of particulars. The affidavit alleges that the indictment is indefinite in that it fails to designate the place where and the time when the defendants set up and promoted and were concerned in managing and drawing the lottery and raffle with which they were charged. It also propounds several interrogatories as to the contentions of the State and requests that the defendants be advised in what manner they were concerned in and promoted a lottery, permitted the sale of chances and tickets in premises under their control, and inquires as to which one of the offenses charged in the indictment was committed by the defendants. This part of the affidavit is, in effect, a motion to require the State to make an election of the particular offense upon which it relies for conviction and to direct it to disclose the evidence which it intends to produce upon the trial. In response to this demand the State, by order of the trial court, furnished the defendants a bill of particulars, filed on February 7, 1945, which, in substance, followed the language of the statute in stating the several offenses charged in the indictment, and specified the place and the time the offenses were alleged to have been committed. At the beginning of the trial the defendants objected to the bill of particulars and moved the court to require the State to furnish a more specific bill of particulars. The court overruled the objection and denied the motion.

The defendants then made a motion to quash and filed their demurrer to the indictment and each of its counts. The grounds are, in substance, that the indictment is too indefinite to inform the defendants fully and plainly of the character and the cause of the accusation against them; that the indictment charges the offenses by recitals instead of by direct allegations; and that the indictment does not allege, as a necessary element of the offense, that the odds in the lottery charged were in favor of the exhibitors and against the betters. The court denied the motion to quash and overruled the demurrer.

During the month of December, 1944, members of the Department of Public Safety, attired in plain clothes, visited the Plaza Cigar Store at 121 Summers Street in the City of Charleston, Kanawha County, West Virginia, and purchased tips which gave the privilege to the holder to punch numbers from a board which was being operated at that place. At the time of the visit, several persons were engaged in the act of punching numbers from the board, which was four or five inches long and three inches wide. The winning number was concealed at the top and a controlling or tip number openly appeared elsewhere on the board. Certain tickets were placed or fastened in the board in such manner that a person who had purchased a chance could, by punching a particular place on the surface, eject from a small compartment or section a roll of paper which bore a specific number. In operating the board, the person keeps the rolls which carry his tip number until all the sections of the board are punched. The concealed number is then exposed. The person who has a tip number and a number which corresponds with the concealed number is the winner of the prize. In this case the prize was money but the amount of money won is not shown by the testimony. The evidence fails to show that the defendant Hudson participated in, directed, or managed the operation of the punch board. It does appear, however, that he was behind the counter in the store and was engaged in operating another game of chance known as twenty-six. It is also shown that he took money from one of his pockets to supply funds to the operator of the last mentioned game to pay its losses. No evidence was introduced to show that the defendant collected any money from the punch board or that he was the owner or the proprietor of the Plaza Cigar Store.

After the visits of the various officers, which occurred on December 5, 19, 20 and 21, 1944, a search warrant was issued on December 23, 1944, and the place was raided by members of the Department of Public Safety and a deputy sheriff of Kanawha County in the afternoon of that day. At the time of the raid, which apparently was expected, the defendant seized a cigar box containing money, the amount of which is not shown, and started to run from the room, but he was arrested before he could escape. Upon the trial the State was permitted, over the objection of the defendant, to introduce evidence that the defendant operated a game known as twenty-six. The trial court admitted that evidence for the limited purpose of showing motive, intent and system in connection with the operation of the punch board, and not as evidence to support a conviction for the offense of operating the twenty-six game. At the conclusion of the evidence, a motion of the defendant to strike the evidence offered by the State and to direct a verdict for the defendant was overruled by the court. The proof introduced by the State consisted of the testimony of three members of the Department of Public Safety, Troopers Randall, Perrine and Hampton, who at various times visited the place at which the defendant was arrested or took part in the raid on December 23, 1944. The defendant did not testify and he offered no evidence in his behalf.

By his numerous assignments of error the defendant contends, in substance, that the trial court erred: (1) In overruling the motion to quash and the demurrer to the...

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    • July 16, 1974 connection with the crime charged. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 447 and State v. Hudson, 128 W.Va. 655, 37 S.E.2d 553. Moreover, the defendant's contention that it was error for the trial court to admit in evidence testimony concerning the seizure......

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