State v. Morgan

• Decision Date: 18 December 1903
• Citation: 45 S.E. 1033,133 N.C. 743
• Parties: STATE v. MORGAN.
• Court: North Carolina Supreme Court

45 S.E. 1033

133 N.C. 743

STATE v. MORGAN.

Supreme Court of North Carolina

December 18, 1903

Appeal from Superior Court, Wilson County; Ferguson, Judge.

George T. Morgan was convicted of gaming, and appeals. Affirmed.

A witness' privilege to refuse to answer a question on the ground that it will degrade him is personal to him, and cannot be used by a party.

The Attorney General, for the State.

MONTGOMERY J.

The bill of indictment in this case contained two counts. In the first the defendant was charged with keeping and maintaining a gaming house--a nuisance at common law; and in the second with playing cards, a game of chance, for money, under chapter 29, p. 55, of the Laws of 1891. The counsel of defendant entered a motion to quash the indictment upon two grounds: First, because two offenses "created by different statutes" and punished differently were joined; and, second, for that the indictment did not charge that the games played were ones of chance, and that they were played at a place or tables where games of chance were played; and, further, that the offense of keeping a common gaming house is a separate offense from playing at a game of chance, and, as the two offenses are charged in the same indictment, no judgment could be pronounced upon a general verdict of guilty.

The court committed no error in refusing the motion. The two offenses charged, separate and distinct as they are, are not felonies, but misdemeanors, and they can be properly charged in the same indictment; and the punishment prescribed by law for each was not different. The court might have, in its discretion, quashed the indictment, but was not compelled to do so. State v. King, 84 N.C. 737; Wharton, Criminal Law, § 414. Besides, the offenses charged in the indictment though distinct, are of the same nature, and a similar judgment might be passed in each case, and there can be no objection to the indictment setting forth the offenses in different counts. Wharton, supra, § 415. A case exactly in point is that of Wheeler v. State, 42 Md. 563. In that case it was decided that "counts under the statute against gaming, and counts for keeping and maintaining such a common gambling house, as to constitute a nuisance at common law, may be properly joined in the same indictment."

As to the defendant's second ground for the quashing of the indictment: It was not necessary to charge in the indictment that the games played at the gaming house were games of chance. That is sufficiently implied in charging that the defendant kept a certain common gaming house, the word "gaming" having a definite meaning in law; i. e gambling--the act of playing games for stakes or wages. It is not essential, either, that the game should be played by using ordinary gaming cards. Gaming may be done by other means or devices as well as cards. When the law uses the word "gaming" it not only uses a term well defined and known to the law writers,...