110 Ky. 273 | Ky. Ct. App. | 1901
Opinion of the cotjkt by
Reversing.
On July IB, 189S. the grand jury of Kenton county returned four indictments against appellant for the offense of maintaining and continuing a common nuisance. The first indictment charged that he did from March 31, 1898. to and including April 30, 1898, unlawfully suffer and permit divers and sundry persons, to the grand jury unknown, habitually to assemble in a certain bouse in Govington, known as ‘‘Sharp’s Place,” which was in his possession and control, and then and there engage in betting winning and losing money, on horse races. The second indictment charged the same offense committed from April 30, up to and including May 31, 1898; the third, from May 31, up to and including June 30, 1898; the fourth, from June 30 to July 13, 1S98. The four indictments are precisely the same, except the dates between which the offense is alleged to have been committed. They cover a continuous period of 112 days — from -March 31st to July 13th. Appellant was arraigned on the last indictment and pleaded not guilty. A trial w,as had. He was fined $75, and paid the judgment. He was then put on trial under the first indictment. He entered a plea of not guilty, and also pleaded his conviction under the other indictment in bar.' The testimony was heard, and the court below at the conclusion of the evidence held the plea of former conviction not to be good. The jury returned a
The evidence showed that appellant kept the1 place referred to in the indictments from some time' in March, 1898, until after the indictments were found; that it was what is known as a “pool room,” at which bets^were made on horse races in different parts of the United States; that there were blackboards on the walls, on which the names of the horses, also the weights and jockeys, were entered; that the Western Union Telegraph Company ran a wire to the room, so as to give the results of the races as they were run, the operator calling out the news to the public ■as it was received from the race course, and giving the relative positions of the horses at different points on the ■course; that there was a ticket writer, who took bets, and a cashier, who cashed the tickets. The pooling commenced about 1 o’clock in the afternoon, and' continued at times until 6 or 7, depending on the point where the races wmre run. From 75 to 150 people gathered there. The daily business amounted to from $1,200 to $1,500. There ■were from ten to fifteen employes in the establishment. About 8 o’clock in the morning one man put upon the board the entries for the day. Some betting was done in 'the morning. Six or eight of the employes came about 8 o’clock in the morning, the rest about 12. The crowd left about 7 o’clock. The cashier stayed to finish up his accounts. The room vas then swept and scrubbed every 'night, and a watchman left in. charge until morning. There were several desks and other furniture in the room, for use in the business, all of which were placed there for
Under this evidence the keeping of the house was a nuisance ¡maintained uninterruptedly, and was- plainly a continuous offense from the time it was ¡opened until the finding of the indictments. The Commonwealth could not arbitrarily split up a -continuous offense, and make what was done in April one offense, what was done in May a ¡second, what was done in June a third, and what was done in July a fourth. If it could do this, it might further have split the offense up, and made each week the subject of a separate indictment, or followed any other arbitrary division of the time. The rule of law is elementary that a ¡single cause of aid ion can not -be split so as to be the subject of two suits. Freeman Judgment, .section 238. The rule in -criminal prosecutions is thus stated in Freeman Judgment, section 225: “The conviction of an offense-, libe the recovery of judgment in a civil action-, is a bar to any further prosecution based on- the same cause of complaint. The question often arises whether the offense of which one is accused is not a part of an offense of which he has already been convicted,, and,, if. so,, whether the whole;
Where the defendant has been found guilty under an indictment for nuisance, the court may by proper orders-require it to be abated. Bollinger v Commonwealth, 16 Ky. Law Rep., 395: Bishop, Criminal Law, section 1079. And if, after the indictment is found against him, the defendant continues to maintain the nuisance, he may be subsequently indicted for its continuance after the finding of the former indictment; for proof of this could not be used to secure a conviction under that indictment, and aproseeution for an offense can not operate as a license to ■continue it. The State has, therefore, an adequate remedy for the suppression of such offenses, without splitting them up in different prosecutions, all beghn at the same time, as was done in this case. Judgment reversed, and cause-remanded for further proceedings consistent with-this opinion.