State v. Shelton.

• Decision Date: 21 March 1916
• Citation: 78 W.Va. 1
• Parties: State v. Shelton.
• Court: West Virginia Supreme Court

78 W.Va. 1

State

v.Shelton.

Supreme Court of Appeals of West Virginia.

Submitted March 7, 1916.

Decided March 21, 1916.

1. Indictment and Information Duplicity Election.

When an indictment contains two or moie counts all good, and the charges therein are of the same general character, and the counts are manifestly inserted to meet different phases of the evidence, the indictment will not be quashed, neither will the prosecuting attorney be required to elect on which count he will proceed to trial, (p. 2).

2. Gaming Keeping of Common Gaming House Elements of Offense.

It is not material that a common gaming-house should be kept for lucre or profit, and in a prosecution for such offense, the court may instruct the jury that it is not neaessary for the State to show that the defendant kept the gaming-house for gain or lucre or profited therefrom, (p. 3).

3. Criminal Law Eefusal of Instruction Covered.

Where a proper instruction has already bee: i given upon a point in the ease, the court may refuse other instructions tendered, which would not furnish additional aid to the jury in reaching a proper verdict, (p. 3).

4. Same Misdemeanor Punishment.

A misdemeanor, where no statute fixes the punishment, is punished by fine or imprisonment in the county jail, or both, at th& discretion of the court, (p. 4).

Error to Circuit Court, McDowell County.

Kyle Shelton was convicted of keeping a common gaming house, and brings error.

Affirmed.

Joseph M. Crockett, for plaintiff in error.

A. A. Lilly, Attorney General and John B. Morrison and J. E. Brown, Assistant Attorneys General, for the State.

Mason, Judge:

Kyle Shelton was indicted in the Criminal Court of McDowell County for keeping a common gaming-house, tried, convicted, and adjudged to pay a fine of $50.00, the costs of the prosecution, and to labor upon the public roads of the county during the term of imprisonment, and that if the fine and costs be not paid on or before the expiration of said imprisonment, that he shall labor on said roads until the fine is paid, allowing him one dollar for each day he works on the roads after the expiration of the "jail sentence" until the fine and costs are satisfied. The defendent carried the case by writ of error to the circuit court of McDowell County, where the judgment of the criminal court was affirmed; and the defendant now brings the case to this court for review on writ of error.

The indictment contains two counts. The defendant moved to quash the indictment. No objection to either count of the indictment is pointed out by counsel, and none is perceived by this court. The defendant pleaded not guilty, and moved the court to require the State's attorney to elect which count of the indictment he would rely upon for conviction; which motion was overruled, and the defendant excepted. Each count charges the defendant with keeping a common gaminghouse. They charge the same offense that of keeping a common gaming-house, but they charge it (the offense) in different ways, for the purpose of meeting the evidence as it may come out on the trial. This is a prudent and frequent practice, and an entirely proper one. It is well settled in this State that where an indictment contains two or more counts all good, and the charges are of the same general character, and the counts are manifestly inserted to meet different phases of the evidence, the indictment will not be quashed neither will the prosecutor be required to elect upon which count he will proceed to trial. State v. Smith, 24 W. Va. 814; State v. Shores, 31 W. Va. 491; State v. Halida, 28 W. Va. 499. The court did not err in refusing to require the prosecuting attorney to elect which one of the counts he would rely upon for a conviction.

The court at the instance of the State gave the following instruction to the jury: "The court instructs the jury that if they believe from the evidence in this case, and that beyond a reasonable doubt, that the defendant kept a common gaming-house, then they should find him guilty, and to constitute the offense, it is not necessary for the State to show that the defendant kept the same for gain or lucre, or that he profited therefrom." We perceive no defect in this instruction. It correctly instructs the jury that the evidence required to show the defendant guilty of the charge alleged against him, must be beyond a reasonable doubt, and adds that it is not necessary for the State to show that the defendant kept the same (the gaming-house) for gain or lucre, or that he profited therefrom. One of the allegations of the indictment, following the usual form, was that the defendant kept the house for "lucre and gain." It was entirely proper that the court should say to the jury that it was not necessary to prove this allegation. This court has recently said, in the case of State v. Baker, 69 W. Va. 266-7, that, "The fact that it is not proven that defendants kept the room for lucre is not material. True, some authorities hold that to constitute the offense of keeping a common gaming-house it must be alleged and proven that it was kept for gain or lucre; but the better opinion, as well as the weight of authority, is to the contrary. The offense consists in the keeping of a gaming-house; the keeping of such house is, in law, a public nuisance; its character as a nuisance in nowise depends upon the matter of profit to those who maintain it."

The defendant also complains that the court refused to give for him the following instruction: "The court instructs the jury that if any juror has a reasonable doubt as to the defendant's guilt, they cannot find him guilty." This was not error in view of the fact that the court had already at the instance of the defendant given the following...