Young v. State

• Decision Date: 25 November 1938
• Parties: YOUNG v. STATE.
• Court: Tennessee Supreme Court

121 S.W.2d 533

YOUNG v. STATE.

Supreme Court of Tennessee.

November 25, 1938.

Error to Criminal Court, Hamilton County; Charles W. Lusk, Judge.

Herbert Young was indicted for gaming and keeping a gaming house and Nancy E. Townsend became surety on his bail bonds. From a judgment on the bonds, the surety, Nancy E. Townsend, appeals.

Affirmed.

E. B. Baker, of Chattanooga, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

DeHAVEN, Justice.

Herbert Young, in the first of the two cases presented, was arrested upon a State warrant charging him with the offense of "Keeping Gaming House." He was bound over by the City Judge of Chattanooga to the Criminal Court of Hamilton County, the amount of his bail bond being fixed at $1,000. Nancy E. Townsend became surety on this bond, which in terms required that Herbert Young make his appearance on the first Monday in December, 1937, before the criminal court, and "Then and there to answer the charge of the State of Tennessee, pending against him by warrant for Keeping Gaming House and not depart the court without leave."

In the second case, the warrant charged Herb Young with the offense of "(Gaming) Unlawfully and feloniously gaming at craps at a common gaming house." He was bound over to the Criminal Court of Hamilton County and his bail bond fixed at $250. The conditions of the bond were similar to those stated in the bond in the first case above mentioned. Nancy E. Townsend became surety on this bond.

When the cases were presented to the grand jury, indictments were returned against Young and charged him in the first case with feloniously keeping and having under his control and management a room, hall or house, "for the purpose of encouraging, promoting, aiding and assisting in bets and wagers upon horse races for a thing of value," etc. The indictment in the second case charged Young with feloniously keeping a room, hall or house, "for the purpose of encouraging, promoting, aiding and assisting the playing of a certain gambling game of craps, the same being a game of hazard or chance," etc.

The principal in the bonds made default when called upon to answer the indictments, and thereupon scire facias was duly issued against the surety, Nancy E. Townsend, to show cause why the conditional judgment should not be made final.

By answer to the scire facias the surety insisted in each case that the principal in the bond had been bound over to answer a charge which was a misdemeanor, but that the grand jury had returned an indictment in each case charging the principal with a felony, and for this reason the surety was released on the bond. It was further insisted, in the second case, in which the principal's name was signed to the bond as "Herb Young," that the surety was released because the indictment was against "Herbert Young."

The trial judge overruled these defenses, and rendered final judgments on the bonds. The surety, Nancy E. Townsend, has appealed to this court and assigned errors.

It is insisted on behalf of the appellant surety, in the first case, that she signed a bond in the amount of $1,000, conditioned that the principal would appear in the criminal court to answer a charge pending against him by warrant for the offense of "Keeping Gaming House," a misdemeanor "based on section 11277 of the Code," but that the grand jury returned an original presentment against him for an entirely separate and distinct offense that is a violation of sections 11289 and 11290 of the Code.

Section 11289 of the Code makes it unlawful for any person to keep or have under his control or management any room, hall, or house, or any other place, for encouraging, promoting, aiding or assisting in any betting on any horse race. Section 11290 provides that a violation of the preceding section to be a felony. Betting on a horse race is gaming. Code 11288; Brown v. State, 88...