I, too, dissent. Let it be assumed that the ordinance is valid, that a public offense under it was sufficiently stated in the complaint to confer subject-matter jurisdiction, and that the court had jurisdiction of the person; still that, in a case tried to a jury, did not give the court power or authority to pronounce or render a judgment, except upon a proper and sufficient verdict. Though a court has jurisdiction of subject-matter and of the person, yet, if, in a case tried to a jury, a court pronounces or renders a judgment without a verdict, no one would contend that the court had not exceeded jurisdiction and acted without authority. Thus the question is: What kind of a verdict was here rendered? Was it merely defective or irregular, as held in the prevailing opinion, or was it wanting in substance? I think it is the latter, and not the former. The jury found the defendant guilty of aiding, etc., in pool selling, or aiding, etc., in receiving and registering a bet on a horse race. Under the ordinance the commission of either was an offense, and either the subject of a criminal complaint. Clyatt v. U.S.,197 U.S. 207, 25 S. Ct. 429, 49 L. Ed. 726. In the complaint the accused was charged with both. The jury found he was guilty of the one, or of the other. The word "or," in the verdict, may not be regarded as "and." Sometimes "or," in a statute or a contract, it taken conjunctively, and "and" disjunctively, where such a reading is necessary to give effect to the intention of the Legislature or of the parties, as plainly expressed in other parts of the act or contract; and in an act such words would be so used and regarded to prevent the imposition of pains and penalties, but not for the purpose of imposing them. Rice v. U.S. (C.C.A.) 53 F. 910. Hence we must take the verdict as it is, and as expressed by *Page 332 the jury. As so expressed, it is not merely defective or irregular; it does not mean anything. It is like an affidavit for an attachment, stating two or more grounds disjunctively for an attachment, thereby rendering the affidavit useless for any purpose. 6 C.J. 136. So is the verdict here useless for any purpose. It introduced such an element of uncertainty and indefiniteness as to render it impossible to determine of what the defendant was found guilty. Had the complaint here charged that the accused committed the one or the other offense, aided in pool selling, or aided in receiving and registering a bet on a horse race, it would be impossible to determine which offense was charged, or which of the acts was alleged to have been committed by the accused. And unless the disjunctive "or" in such a complaint be read "and," and a conclusion reached that both offenses were charged, which would not be permissible, it follows that in such case no offense was charged. The verdict here is no better.
I thus think the judgment void, and it ought to be annulled.