2 Morr. St. Cas. 1042 | Miss. | 1872
This was a conviction, in the circuit court of Attala, for betting on an election. The indictment under which the defendant 'was tried, charged that said defendant, “ on the 28th day of October, 1856, bet a fifty-dollar bank note against a horse, with one M. 0. Sharkey, upon the result of a certain election, to be held on the 4th day of November, A. D. 1856, in the state of Kentucky, for “ Presidential electors,” etc. On the trial, it was proved that the bet was made on the 5th or 6th day of November, 1856, and, of course, after the Presidential election had been held in the* state of Kentucky. Upon this evidence, under the instructions of the court, the defendant was found guilty and sentenced. Whereupon he prosecuted this writ of error.
On the trial, at the instance of the prosecuting attorney, the court charged, amongst other instructions given to the jury, that “ if they believed, from the evidence, the bet was made, either before or after the election mentioned in the indictment, within twelve months next before the finding of the indictment, the indictment will be sustained.” And the court refused the instructions requested by the defendant, which were in the words following, to wit:
“ If the jury believe, from the evidence, that the bet was
“ If. they believe the bet was made after the time laid in the indictment, they will acquit.”
• And “ if they believe the bet was made after the election had been held, they will acquit.!’
The last instruction raises the question, whether a bet made upon the result of an election, after the election was held, is a violation of the statute under which the indictment was framed; and which applies to all persons who “shall wager •or bet, or - who shall promote or encourage the wagering or betting of any money, or other valuable thing, upon any cockfight or duel, dr-upon the result of any election, of any kind soever.”
. This language is certainly broad, and is sufficiently comprehensive to include any wager or bet upon the uncertain result of any election, whether made before, or subsequent to, the time of holding such election. The evils resulting to the commonwealth may be, and doubtless are, greater from the practice of ■betting upon future elections, than which would result from the same practice if confined to elections which had previously taken place. But, for that reason alone, we are not authorized to restrict the plain and express language of the statute to the practice of betting on elections to be held after the bets were made. And that, too, in the face of the manifest object of the ’legislature, which' was to suppress entirely the evil practice of gaming of all kinds. In our opinion, therefore, the court was correct in refusing the instructions.
Generally, it is not incumbent upon the prosecution to prove that the offense charged was committed on the precise day alleged in the indictment. It is sufficient, as a general rule, that the offense charged be proved to have been committed before the finding of the indictment. But there are some exceptions to this rule. And it is laid down, that whenever time is of the essence of the offense, or a necessary ingredient in the description of it, the time must be proved as laid in the indictment, at least so far as may be necessary to identify the offense charged. Wharton’s Crina. Law,'220 ; 2 Russ, on Crimes, 802;
A bet on the result of a future election, it is argued, is materially different from a bet on the result of an election which has been held. And hence, that the time stated in the indictment is an essential part of the description, so as to distinguish the one from the other.
This argument proceeds upon the assumption that the statute has created two distinct offenses, one of which is committed when a bet is made on the result of an election to be held after the bet is made ; and the other, when a party bets upon the unknown result of an election previously. In our opinion, the statute draws no such distinction. It has created but a single offense, which is consummated where a party bets on the result of an election, either before or after it has been held. Upon this construction of the necessary ingredient in the description 'of it. And it follows, hence, that the words “ to be,” inserted 'in the indictment before the words “ held on the 4th day,” etc., ■'which designate the election as a future event, were mere sur'plusage, and might have been stricken out without affecting the charge, or disregarding in.the proof. In our opinion, therefore, there was no error in granting or refusing the instructions requested by either party.
It appears from the record, that nineteen persons, by order of the court, were empaneled and sworn as grand jurors for the term at which the indictment was found. This is made the ground of another exception in this court. The objection was made in the court below by motion in arrest of judgment.
Under the law as it existed prior to the adoption of the act approved March 1st, 1854, and of the act of the 20th of February, 1856, which extended the provisions of the former to all of the counties in the state, the circuit judge, at his discretion, might select any number of the venire in' attendance on court, not under nor over eighteen, to be drawn by lot to serve as grand jurors.
We do not doubt, if the former law be still in force, that a grand jury composed of less than thirteen grand jurors, or more than eighteen, would be illegal, and its acts void. It hence be
The act of 1854, local in its operation, but made general by that of 1856, is silent as to the number of the grand jury. And it does not in express terms repeal the provisions of the sixth section of the statute of 1830, which declares that the grand jury shall be constituted on not less than thirteen nor more than eighteen persons. It seems, therefore, justly inferable, that the legislature, in requiring the sheriff to summon twenty men to serve as grand jurors, did not thereby intend to designate the number of which the grand jury should be composed, but only to provide a body of men out of whom a grand jury should be selected. Indeed the act itself leaves this a matter of inference. The second section of the act directs that the grand jurors, thus summoned should be empaneled, sworn, and charged in the manner then prescribed by law. Another consideration renders this construction still more probable. It is evident upon an examination of the language employed in the same section, that the legislature proceeded upon the supposition that the number of the grand jury was prescribed in the act itself, or by some antecedent law, which it was not its intention to repeal. It directs, that in case a sufficient number shall not be in attendance to constitute a grand jury, it shall be lawful immediately to summon others. This language appears to indicate, and very clearly too, the whole number (twenty) directed to be summoned should not be requisite to the due constitution of the grand jury. For if the legislature, by providing that twenty men should be selected and summoned by the sheriff, intended to fix the number of the grand jury at twenty, it would have directed that if any of the twenty summoned should fail to attend, that others to supply their places should be summoned. And this construction of the statute was applied in the case of Weeks v. State, 31 Miss. R., 490.
The statute, as above remarked, is silent in reference to the number of the grand jury. It results, therefore, from the decisions in Weeks’ case, that if the act of 1830 in this respect be repealed, the legislature intended to leave it to the discretion
The result of this conclusion is, that the grand jury who found the indictment in this ease were illegally constituted. And hence, that the judgment should have been arrested, on the motion of the plaintiff in error.
