State v. Nelson

• Decision Date: 31 January 1854
• Citation: 19 Mo. 393
• Parties: THE STATE, Appellant, v. NELSON, Respondent.
• Court: Missouri Supreme Court

19 Mo. 393

THE STATE, Appellant,

v.NELSON, Respondent.

Supreme Court of Missouri.

January Term, 1854.

1. An indictment which charges the defendant with permitting a ““gambling device” instead of a “gaming device” is sufficient.

Gardenhire, (attorney general,) for the State.

The indictment is not bad in using the word “gambling” instead of “gaming.” Those words are used synonymously in the statute. State v. Mitchell, 6 Mo. 147.

F. P. Wright, for respondent.

1. The indictment should follow the words of the statute. 2. It is bad for duplicity.

RYLAND, Judge, delivered the opinion of the court.

At the April term of the Circuit Court of Daviess county, in the year eighteen hundred and fifty-three, the grand jury indicted the defendant, Joseph L. Nelson, and one William Johnson, for permitting gaming to be carried on in a house in their possession. The defendant, Nelson, was taken by the sheriff, and the capias returned “not executed on John son.”

At the October term following, the defendant, Nelson, filed his motion to quash the indictment which motion is as follows: “The defendant, Joseph L. Nelson, moves the court to quash the indictment in this case, because the same is not in the words of the statute; because the indictment charges no offence known to the law.

The indictment charges that defedants permitted a certain gambling device to be used for the purpose of gambling, &c., when the statute only prohibits the use of such device for the purpose of gaming; and because the indictment is, in other respects, informal and insufficient.”

The court sustained this motion, and the circuit attorney excepted, and brings the case here by appeal. The indictment is as follows:

“State of Missouri,

)

Fifth Judicial Circuit.

)

In the Circuit Court of the county of Daviess, in the state of Missouri, of April term, A. D. 1853.

Daviess county, to-wit:

The grand jurors for the state of Missouri, for the body of the county of Daviess aforesaid, upon their oath present, that Joseph L. Nelson and William Johnson, both late of the county of Daviess aforesaid, on the fourth day of April, in the year of our Lord, one thousand eight hundred and fifty-three, with force and arms, at the county of Daviess aforesaid, unlawfully did suffer and permit a gambling device, called cards, which said gambling device was then and there adapted, devised and designed for the purpose of playing games of chance for money or property, to be used for the purpose of gambling, in a house of which they, the said Joseph L. Nelson and William Johnson then and there had the possession and control, by divers persons then and there in the house aforesaid, in the possession and under the control aforesaid then and there being; and did then and there, in the house aforesaid, in the possession and under the control aforesaid, unlawfully suffer and permit the said persons to play divers games of chance with said gambling device, for money and property; upon which said games of chance, so played as aforesaid, money and property was then and there bet, won and lost, against the form of the statute in such case made and provided, and against the peace and dignity of the state.”

1. The question before us involves the sufficiency of this indictment. For the appellee, the defendant below, it is insisted that the indictment was properly quashed, because the offence being created by statute, it...