State v. Ellis

Opinion of the court delivered by

Tompkins J.

This indictment is framed on the 17th section of the 8th article, concerning crimes and punishments, by which it is provided that any person who shall suffer or permit any gambling table, bank or device, prohibited by the preceding provisions, to be set up or used for the purpose of gaming in any house, building, &c. to him belonging, or by him occupied, &c, shall on conviction, be adjudged guilty of misdemeanor, &c. The points made by the defendant are: 1st, that the words used as descriptive of the offence are not sufficient, and that the omission to use all those used in the statute is fatal. 2d. That the indictment is too uncertain in charging the of-fence, viz: in stating that the defendant suffered or permitted &c. 3d. That, in the indictment it is alleged that idle persons were permitted to’play, bet, &c. without alleging by whom they were permitted, and because it does not appear whether the betting was at the game or at the device.

1. The want of accuracy specified under this point is, that in the indictment, it is not alleged as in the statute .that the gambling device was adapted, devised and designed for the purpose of playing any game of chance for money or property; and to support this point, 1 ty’s criminal law, page 235-6 is cited. Nothing on either of those pages is found to support the point here made. The general rule,as it is expressed in a (Vaughn v. The State) decided at Palmyra at the last April term, is that so many of the words used in the statute to describe the offence as are necessary shall be used to state it in the indictment. That case is not before us now, nor are the authorities within our reach. It seems to us amply sufficient to say that the defendant permitted a certain gambling device, adapted, devised and designed jfor the purpose of playing a game of chance, without ádding, as in the statute, these words ‘for money or property.” In the indictment they are wholly useless, *477except for charging that the defendant did permit persons to Bet or play for money or property. The mere keepitig such a device in one’s house is no offence against law'. "Bets may be made on any game of chance, and probably many' persons keep the tables or devices in their houses who'iievér intended that money or property should be'bet on them.'' The proof that they are kept for the purpose' of playing games of chance for money or property on is, that some persons'are' permitted to play for money or property on such devices.

Charging the ok fence in the tiiTwoid^'oFthe stnt., is not fatal° when the descriptive words m the irnous? We synon' It is unnecessary tem?raiobyAe°Se^s Eetthlg,gambling &c. was done, the fouse0 where the device was kept being responsible for the use made

2. The second point is, thát the indictment is too uncertain, in stating the defendant was suffered" or permitted. This court is disposed to regard those two words as having here precisely the same meaning. The wi iter ^ias l°sf ^is labor in using both of them, as it seems to us, one of them would have served his turn as well. Page °f Chitty’s criminal law above referred to, (P* 236) it is said that an indictment stating that the de-fendant “murdered or caused to be murdered” is bad, because too uncertain — because the defendant is not in-’ formed against which charge he is to be prepared to defend. But surely the defendant in this indictment could not with agrave face say he did not know whether he should defend against suffering or against permitting idle and ill disposed persons to play, &c.

3. The third point is, that it is' not stated in the indictment by whom these idle persons were permitted to bet, play, &c. It is charged" in "the indictment that the défendant permitted "this gambling device to be kept in ^ouse’ and we must hold him answerable for the use made thereon of if. If he ini ployed'an agent to super-intend it, and he permitted playing &c. tlié deferidánt his acts and is the

It is"the opinión of this 'court that the circuit committed error in quashing the indictment. Its ment is therefore reversed and the cause is remanded.

state has no ofcnmtiúaiacases,m where the defend-anlhas J”1!6;”*,! jury,