Clark v. State

Jun 15, 1851

Versions:19 Ala. 552

COLEMAN, J.

Thе indictment in this case charges that “ the defendant, being the 'Occupant of 'a certain house at the *554race traсk, near the city of Montgomery,, in said county, did' then and there unlawfully and knowingly permit and suffer a certain gaming table, called a faro bank, to be exhibited and carried on in said house, by him the said John Clarke,, so occupied-as aforesaid.”

The indiсtment is founded on the 16th section, chap. 6th, of the-Penal Code, in these words : “ If any owner or occupant of any housе, out house, or other building, booth or tent, shall knowingly permit, or suffer any of the tables, or banks, particularly or-generally desсribed as aforesaid, to be carried on or exhibited in his house, out house, or building, booth or tent, and be thereof conviсted, he shall be fined in a sum not.exceeding two thousand dollars: Provided, always, that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍if any owner or occupant of any house, out house, or other building, booth or tent, shall give information to any judge or justice of the peace of the prоper county, against any person keeping, exhibiting, or concerned or interested in said table or bank, within six days after thе same comes to his knowledge, he or they, so informing,, shall not be liable to the penalties of this section.

That part оf the act above referred to, which describes the' banks or tables, is in these words : “ If any person- shall hereafter be guilty оf keeping or exhibiting any gaming table, called A B C, or E 0, or Roulette, or Rowley Powley, or Rouge et Noir, or Thimbles, sometimes called Three Ticket Lottery, or Chuckerluck, or Faro Bank,” &c.

1. It is contended that the indictment is defective because it dоes not negative the proviso contained in the statute creating the offence. The rule on this subject is, that if there be any exception contained in the same clause of the act which creates the offence, the indictment must show negatively that the defendant does not come within the exception. — Arch. 52. But where the act contains provisоes and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not comе within the exception, or to negative the proviso it contains.—1 Chitty’s Cr. L. 283. Nor is it even necessary to allege that the defendant is not within the benefit of its provisoes, though the purview should expressly notice them, as by saying that none shall do the act рrohibited, except in the cases hereinafter excepted ; (Hawk. b. 2, c. 25, § 113,) for all these are matters -of defenсe, which the prosecutor need not anticipate, but *555which the prisoner must prove.—2 Burr. 1037; 5 T. R. 83. In au indictment against the recеiver of stolen goods on the statute of Ann, whereby he is made liable, if the principal is not taken, it is not necessary to aver that the principal is not taken; or on the statute 22 George III, to state that the principal has not be.en cоnvicted.—2 Lord Raymond, 1378; 5 T. R. 83; 2 Leach 578. We think it clear in this case, that the proviso is not in the same clause which enacts the offence, and under the authorities cited the matter of defence in the proviso was such as the prisoner must provе.

2. It is contended that the indictment is defective in not setting forth the facts and circumstances constituting the offence, and рarticularly in not stating that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the faro bank was kept or exhibited by some person, and that the name of the person should have been stated if known, and if unknown it should have been so stated.

It has been repeatedly held by this court, that where a statute creates a new offence, all the law requires is a description of the offence in the indictment in the terms of thе statute enacting it.—State v. Duncan, 9 Por. 260; State v. Briley, 8 ib. 474; State v. Click, 2 Ala. 26. As an exception to this general rule it was held that it is not always sufficient to pursue the very words of the statute, unless by so doing you fully, directly and expressly allege the facts, in the doing or not dоing of which the offence consists.—State v. Brown, 4 Por. 413. There seems to be some conflict in the decisions on the question whether the indictment should state the name of the person exhibiting the gaming table, &c. In Ball v. State, (7 Blackf. 242,) it was held that an indictment against a person fоr suffering' gaming in his grocery, should give the names of the persons who played, or state their names to be unknown. The court, in giving this oрinion, refer to two decisions to support it, Butler v. State, 5 Blackf. 280, and the State v. Irvin, ib. 343. We find, on examining these cases, that they were оn ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍indictments for gaming, and not for permitting gaming to bo carried on in a house, &c. In the case of State v. Dale, (3 Blackf. 294,) it was held that in an indictment for permitting gaming in a licensed grocery, it is not necessary to set forth the game that was played. In the Commonwealth v. Lampton, (4 Bibb 261) it was held that on an indictment for suffering gaming in defendant’s house, it was not *556necessary to set forth the names of fhdse engaged in the gaming* The same prinсiple was established in English v. Commonwealth, (Lit. Sel. Cases, 417.) In Commonwealth v.- Crupper, (3 Dana, 466,) it was decided on a charge for keeрing a gambling house, that the indictment will be good without specifying the sum that was lost and won, and by whom it was lost and won* The same rule was fully аffirmed in Montee v. Commonwealth) ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(3 J. J. Marshall) 133.) In England, in an indictment for keeping a common gaming house, it has never been held necessary to state the names of the persons gaming.—Arch. 753, and the núinerous cases there cited. In Rex v. Taylor, 3 B. & C. 502, Holroyd, J., said thаt it wotfld bo sufficient merely to have alleged that the defendant kept ft common gaming house.

In this case, the charge in thе indictment that defendant suffered a gaming table, called a faro bank} to be carried oil and exhibited, &c., necessаrily, and according to the plain meaning bf the words, implied that it was exhibited by some person for gaining: The specific tablе, to wit, a faro bank, is stated in the indictment} and if a further description were required, it might he well asked, where ought the description to stop. Must a particular description of the table} and that money was won and lost thereon on the turning of cards} bе given to show that it was á faro bank 1

We have alfehdy seen that, accbfding to the great weight of authorities, it whs ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍unnecessary to sthto the name of the person exhibiting the gaming table.

■Let the judgment be affirmed.