State v. Nazel

• Decision Date: 12 November 1930
• Docket Number: 6707.
• Citation: 156 S.E. 45,109 W.Va. 617
• Parties: STATE v. NAZEL.
• Court: West Virginia Supreme Court

156 S.E. 45

109 W.Va. 617

STATE v. NAZEL.

No. 6707.

Supreme Court of Appeals of West Virginia.

November 12, 1930

Submitted October 28, 1930.

Syllabus by the Court.

Indictment alleging offense substantially in statutory language is ordinarily sufficient.

Ordinarily an indictment which alleges an offense substantially in the language of the statute is sufficient.

That testimony of particular witness fails in itself to connect accused with crime charged does not require its exclusion.

The mere fact that the testimony of a particular witness fails in itself, to connect the defendant with the alleged crime does not call for its exclusion.

Prosecuting attorney's statement in argument that defendant failed to introduce single controverting witness held not within statutory inhibition against alluding to defendant's failure to testify (Code, c. 152, § 19).

A statement of the prosecuting attorney in his argument to the jury that "not a single witness has been introduced by the defendant here to controvert those facts," but without specific allusion to defendant's failure to testify, does not come within the inhibition of section 19 c. 152, Code.

Error to Circuit Court, Cabell County.

Albert "Dutch" Nazel was convicted of violating statute making it unlawful to set up, promote, or be connected with or interested in, the management or operation of, any pool room, and he brings error.

Affirmed.

Via, Hardwick & Quinlan, of Huntington, for plaintiff in error.

Howard B. Lee, Atty. Gen., and R. A. Blessing, Asst. to Atty. Gen., for the State.

WOODS J.

Defendant was found guilty in the court of common pleas of Cabell county of an offense under section 10, c. 151, Code, which makes it unlawful for any person to "set up or promote, or be connected with or interested in, the management or operation of, any pool room," within the definition of said section, and sentenced to six months in jail and fined $1,000. His petition to the circuit court of said county for a writ of error was refused; hence this writ.

The principal errors go to the sufficiency of the indictment, the admission and sufficiency of the proof offered thereon, and certain statements made by the prosecuting attorney and his assistant during the argument.

The jury's verdict was "not guilty" as to the first count, and "guilty" as to the second. The second count, with which we are concerned here, is in words and figures following: "And the grand jurors aforesaid, on their oaths aforesaid, do further present that the said Albert Dutch Nazel on the 3rd day of June, 1929, in the county aforesaid, did unlawfully set up and promote and was connected with and interested in, the management and operation of a certain pool room in the City of Huntington where chances, and pool tickets, vouchers, certificates and written symbols for identification were made out for the benefit of divers persons, for a money consideration bet and wagered by them, whose names are to the grand jurors unknown, and which said chances, pool tickets, vouchers, certificates and written symbols for identification, purported to entitle the persons for whose benefit the same were made out, to various sums of money, contingent upon the results of horse races, bet and wagered by such persons for whose benefits said chances, pool tickets, vouchers, certificates and written symbols for identification were made out, upon the results of said horse races, the results of which said horse races were then and there obtained by means of an electrical telegraph device , against the peace and dignity of the State."

Is the foregoing count good on demurrer? The reference to the first count is sufficient to supply venue. State v Vaughan, 93 W.Va. 419, 117 S.E. 127. Any room equipped with an electrical device, for obtaining results of horse races, etc., and tickets, entitling holders to money, contingent upon results of races, etc., is a pool room within the meaning of the statute. The count sufficiently sets up the existence of such a room. The fact that tickets were made out for a money consideration bet and wagered, and that written symbols for identification were used in place of tickets,...