Stearns v. State

• Decision Date: 18 June 1895
• Parties: STEARNS v. STATE (two cases).
• Court: Maryland Court of Appeals

32 A. 282

81 Md. 341

STEARNS

v. STATE (two cases).

Court of Appeals of Maryland.

June 18, 1895.

Appeal and error from circuit court, Anne Arundel county.

William Stearns was convicted of gambling on horse races, and appeals and brings error. Reversed.

Argued before ROBINSON, BRYAN, McSHERRY, FOWLER, ROBERTS, BOYD, and BRISCOE, JJ.

Robert Moss, for appellant.

Atty. Gen. Poe and Ed. C. Gantt, for the State.

BRISCOE, J. The appellant was tried and convicted in the circuit court for Anne Arundel county, under a criminal Information filed by the state's attorney for that county for unlawfully gambling, contrary to Act 1894, c. 232. The information contains five counts. The first charges the appellant with unlawfully gambling on the result of a certain trotting race or running race on the Sheepshead Bay race track, in the state of New York; second, with unlawfully making books and pools on the result of a certain trotting race or running race of horses on the same race track; third, with unlawfully keeping in Anne Arundel county a certain place, to wit, a house, for the purpose of making or selling therein books or pools, or betting therein on the result of a certain trotting race or running race, on the same race track; fourth, for using a certain place there, to wit, a house, for the purposes aforesaid; and, fifth, unlawfully did knowingly suffer such house to be used for the purposes aforesaid. To these counts a general demurrer was Interposed, which was overruled by the court. The appellant then waived his right to plead over, was convicted, and from the judgment so entered against him this appeal has been taken. The main grounds of error assigned and relied upon by the appellant are: (1) Be cause the information omits to negative the exception contained in the proviso of the statute; (2) because the information did not allege the kind of race upon which the book or pool was sold, or bet made, but charged the same in the alternative as being a trotting or running race, without specifically alleging the one or the other; and (3) because of duplicity, in that each count charges several distinct offenses.

In support of the first objection it is contended that the information is defective because all the counts omit to negative the exception contained in the statute (Act 1894, c. 232), which provides that nothing in this section shall render it unlawful for any person to make a pool or a book, or to bet within the grounds of any agricultural association, or upon any horse race which shall be held within the same grounds, within a limited period. But this objection we are of opinion cannot be sustained. The averment in each of the five counts of the information distinctly sets forth that the offense was committed in Anne Arundel county, while the race was at Sheepshead Bay race track in the state of New York. The allegation that the race took place at a certain race track in the state of New York manifestly negatives the exception in the statute, that the race was held within the grounds of an agricultural association within this state. Where a statute contains in exception so incorporated in its enacting clause that the one cannot be read without the other, the indictment or information must negative the exception. But when, after general words of prohibition, an exception is created in a subsequent clause or section, It must be interposed by the accused as matter of defense. But in this case the exception contained in the proviso of the statute is sufficiently negatived by the averment in the information itself.

The second and third objections made by the plaintiff in error to the information we, however, think are well taken. Act 1894, c. 232, upon which this information is based, provides that it shall be unlawful for any person or persons or association of persons to gamble or make books and pools on the result of any trotting race or running race of horses, or race of any kind, or to establish, keep, rent, or use, or knowingly suffer to be used or occupied, any house, building, or portion of a building, vessel, or place, on land or water, for the purpose of making or selling...