In dissenting from the opinion of the majority of the court, I do so for the reason that, after a careful study and examination of the authorities, I have reached the conclusion that the information upon which the defendants in this case were *Page 125 tried is duplicitous. Omitting the caption and signature, the charging part of the information is as follows:
"That they, the said R. W. Hewitt, Fred Browning and Wallace Foreman, and other parties named in the information * * * did then and there unlawfully, wilfully, and feloniously, open, conduct and carry on and cause to be opened, conducted and carried on in a certain house called and known as Beau Monde Club, situated and being on the southeast quarter of the northwest quarter of section five (5), township eighteen (18) north, range twelve (12) east, and within the county of Creek, state of Oklahoma, and by them occupied and of which they had control and did then and there permit and cause to be set up and used for the purpose of gambling, certain tables, apparatus and devices, to wit:
"Roulette wheels, crap tables, poker tables, black jack tables, chuck-a-luck and divers other gambling devices, at which banking and percentage games were played with cards, dice, and wheels and ball for chips, money, credits and other representatives of value and were conducted by the said R. W. Hewitt, Fred Browning and Wallace Foreman, together with other parties named in the information."
The defendants demurred to the information on the ground that it is duplicitous; which demurrer was considered by the court, overruled, and exceptions allowed.
The record further shows that at the conclusion of all the evidence the defendants again raised the question of the duplicity of the information, directing the court's attention to the fact that the information, as the defendant contended, charged a misdemeanor and a felony in the same count. This motion was overruled and exceptions allowed.
The defendants then requested the court to instruct the jury that it might find the defendants guilty of the *Page 126 offense of permitting gambling tables and devices to be set up; which request was denied. The defendants insist in their brief that the information in one count charged both a misdemeanor and a felony. That the information charges a misdemeanor under section 1926, C. O. S. 1921, and a felony under section 1938, C. O. S. 1921.
Section 2558, C. O. S. 1921, in part is as follows:
"The indictment or information must charge but one offense; but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information."
From a careful reading and study of the information in this case it is disclosed that the information contains the following provisions of section 1926, C. O. S. 1921:
"Any person who shall permit any gambling table, bank, or gambling device prohibited by this article, to be set up or used for the purpose of gambling in any house, building, shed, shelter, booth, lot or other premises to him belonging, or by him occupied, or of which he has, at the time, possession or control, shall be, on conviction thereof, adjudged guilty of a misdemeanor."
The information contains the following provisions of section 1938, C. O. S. 1921, which defines the crime of conducting a gambling game:
"Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or percentage, or any gambling game played with dice, cards or any device, for money, checks, credits, or any representatives of value, * * * shall be guilty of a felony."
It cannot be denied that the information in this case *Page 127 uses all of the necessary provisions of both sections of the statute hereinabove referred to, one of which makes the conviction a misdemeanor and the other a felony. The provisions in section 1926 make the permitting of gambling devices to be set up in a building by one who has possession and control of the building an offense, and there is sufficient language in the information to charge an offense under this statute; and these provisions are in no wise essential to the crime of conducting a gambling house, yet they are all charged in the same information. When in doubt as to whether the indictment or information charges a felony or misdemeanor, the defendant should be given the benefit of the doubt, and the offense charged should be held to be a misdemeanor. Bowes v. State,8 Okla. Cr. 277, 127 P. 883.
From a comparison of the sections of the statute with the allegations in the information it is clear to me that the information charges two offenses, one a misdemeanor and the other a felony.
In Kimbrell v. State, 7 Okla. Cr. 354, 123 P. 1027, 1028, this court, in the body of the opinion, said:
"It is true that in the case of De Graff v. State,2 Okla. Cr. 540, 103 P. 538, this court expressed the opinion that, where an information or indictment charged more than one offense, the state might elect the count upon which the trial should proceed; but upon more mature reflection we are satisfied that we were wrong in saying that this could be done. If it is permissible to incorporate more than one offense in the same indictment or information, then an indefinite number of offenses might be so incorporated; and when the case was reached for trial the state might dismiss all of the counts in the indictment or information, except as to one offense. The purpose of the Constitution is that a defendant shall be informed as to the specific offense for which he is to *Page 128 be tried, in order that he may prepare for trial. It would be a violation of the letter and spirit of our Constitution, and also of our statute, to inform a defendant of a number of different offenses, and require him to prepare for trial on all of them. This would give to the state the right to elect, when the trial began, which count would be pressed against the defendant. This would be a regular ambuscade, and would be a mockery on justice. We are of the opinion that an indictment or information must charge but one offense; and, where more than one offense is charged, it is bad for duplicity, and, upon objection being made to an indictment upon this ground, the case should be dismissed."
Kimbrell v. State, supra, is cited with approval in Weitz v. State, 24 Okla. Cr. 56, 215 P. 962.
This court has had the question of the duplicity of the information or indictment before it many times for consideration. Clark v. State, 5 Okla. Cr. 704, 115 P. 377; Kime v. State, 14 Okla. Cr. 111, 167 P. 1159; Williams v. State, 16 Okla. Cr. 54, 180 P. 559.
In Keenan v. State, 33 Okla. Cr. 400, 243 P. 1001, the court in the first paragraph of the syllabus says:
"The information does not come within the scope of section 2558, Comp. Stat. 1921, which provides that an indictment or information must charge but one offense, but that where the same act may constitute different offenses, the different offenses may be set out in different counts in the same information and the accused may be convicted of either offense, because the facts charging the making of mash and the facts constituting the erection and possession of a still constitute two distinct transactions and charge two separate offenses."
The opinion by the majority of the court goes into the analysis of the two sections on the question of gambling and maintaining a gambling house, and held the information *Page 129 good on the theory that the language was not applicable to the offense of which the defendants were convicted, and to be surplusage, and in support of its contention cites Reed et al. v. State, 17 Okla. Cr. 662, 191 P. 1041. An examination of the Reed Case shows that the question of the duplicity of the information was not raised by the defendants. The only question raised in the Reed Case is the question that the information did not state facts sufficient to constitute a cause of action against the defendants.
It is further disclosed in the Reed Case that while the language used in the information is similar to the language used in the information in this case, the duplicity of the information was not called into question and the court was not given an opportunity to pass upon the same. In the Reed Case the defendants were convicted of operating and conducting prohibited gambling houses, and this court held that the evidence was sufficient.
In this case the state proceeded to trial after the demurrer to the information, on the ground of duplicity, had been overruled, and introduced its testimony which resulted in a conviction of the three defendants an trial.
There are many other questions raised by the defendants in this case that are of vital importance and to my mind were prejudicial to the rights of the defendants and deprived them of that fair and impartial trial guaranteed to them under the Constitution and laws of this state. Our statutes provide that in charging a defendant with crime the indictment or information must set forth the acts constituting the offense in ordinary and concise language. It also provides that a demurrer may be filed on the ground that the information does not state facts sufficient to constitute a public offense, and that *Page 130 more than one offense is charged in the information or indictment.
I have carefully considered the record, and the briefs of the plaintiffs in error and the state in this case, and in my opinion the court erred in overruling the demurrer of the defendant on the ground that the information was duplicitous and charged more than one offense. The demurrer of the defendants should have been sustained. For the errors herein mentioned, the case should be reversed, with directions to the court below to sustain the demurrer and proceed further in the case as provided by law.