Middleton v. StateMiddleton v. State
- Reporters:
- , ,
- Before:
- Ilsley
Omitting the formal parts, the defendant was charged in the court below with:
“did then and there wilfully, unlawfully and maliciously conduct and carry on a certain game played with dice’ known as craps, for money and other representatives of value, cоntrary to the form of the statute in such case made and provided, and against thе peace and dignity of the State of Wyoming. * * * *
SECOND COUNT
* * * * did then and there wilfully, unlawfully and maliciously рermit a certain game played with dice known as craps, for money and other representatives of value, to be played, conducted, dealt and carried on in a build *359 ing known and described as 254 South Center Street, in the City of Casper, Nаtrona County, Wyoming, which said building was then and there occupied by Wes Middleton. ’ ’
Upon trial, the defendant was found guilty upon both counts as charged in the information. The cаse is here before us upon proceeding in error, and the only questions presented as the record now stands are whether or not the information allegеs crimes sufficient to sustain the verdict, and whether or not the judgment should be modified and еntered only upon one count.
The sufficiency of the information charging gambling under our statute was discussed in State v. Tobin, 31 Wyo. 355, 226 P. 681.
We do not understand that the assignments of error rаise the point, and neither are we called upon to decide, whether or not to merely play a gambling game is a violation of the statute.
If the defendаnt permitted or conducted the game as owner or as an employeе, he would be equally guilty. If the information is not in proper form, a motion to quash should hаve been made. State v. Tobin, supra. In fact, under a similar, if not identical, statute, the Penal Code of California, Section 330, it was held that:
“It was not material that an infоrmation (which charged that the defendant ‘ did willfully and unlawfully carry on and conduct a сertain game of tan, then and there played for money,’ etc) should have stated that he did so as employee or owner of such game.” People v. Sаm Lung, 70 Cal. 515, 11 Pac. 673.
The allegations in the first count of the information that defendant did conduct, c‘аrry on a certain game, etc., or as in the second count of the information, did permit a certain game, etc., is sufficient to show that the defendant was not а mere player, but rather that he was *360 the owner or an employee in charge of the game. The purpose of the statute is to declare an emрloyee who permits any of the acts prohibited as equally guilty with the owner. There are many cases on the subject. See People v. Sam Lung, supra; 13 C. J. 1018; Ex parte Ah Hem, 53 Cal. 246; Johnson v. State, 10 Okla. Cr. Ct. of Appeals, 597, 140 Pac. 622; State v. Wakely, 43 Mont. 427, 117 Pac. 95; Tucker v. State, 17 Okla. Cr. Ct. of Appeals, 580, 191 Pac. 201; State v. Tudor, 47 Mont. 185, 131 Pac. 632.
We are, therefore, convinced that the information in this ease allеges a crime sufficient to sustain a verdict.
That brings us to the question: Should the judgment be modifiеd and entered only, upon one count? While there may be some doubt on the quеstion, we shall resolve the doubt in defendant’s favor, and think it sufficiently appears frоm the record before us that while the defendant was informed against in two separate counts, the whole matter was involved in one transaction, presenting a point just like that in Tobin v. State, 31 Wyo. 355. 226 P. 681, and therefore the judgment should be modified so that sentеnce can be pronounced upon one count, and, the penaltiеs being the same under either, it is immaterial upon which count sentence is pronounced.
A motion was made herein for the return of certain money introduced in evidence in the trial of this case. As we understand it, a similar motion had previously beеn made in the lower court, but that the lower court refused to pass upon the mоtion for the reason that it conceived that it had no jurisdiction in the matter in view оf the appeal of the case pending in this court. Inasmuch, however, that the cause will be remanded to the district court, the question of jurisdiction in the lower court will no longer be involved, and it, accordingly, can pass upon such motion, sо as to obviate the necessity of this court doing so.
*361 Tbe judgment will therefore be modified and the case remanded to the District Court, so that the defendant may be re-senteneed in accordance with the view herein expressed.
Modified and Remanded.
Blume, Chief Justice, and RiNer, District Judge, concur.