Moore v. State, No. 13,119

No. 13,119 | Neb. | Jul 3, 1903

Duffie, C.

The plaintiff in error Avas informed against under section 217 of the criminal code for alloAving games to he played at a saloon of Avhich he Avas the proprietor. The information does not name the parties Avho were allowed to play, nor does it allege that such parties are unknoAvn. He was convicted and fined, and uoav prosecutes error. Sections 216 and 217 of our crimihal code Avere copied from an Ohio statute, approved March 12, 1831,. At an early day the supreme court of Ohio held-that an “indictment for permitting gambling must recite the parties, or allege that they are unknown,” Davis v. State, 7 Ohio, 205. It is true that the indictment in that case was brought under the section corresponding to section 216 of our criminal code, but it is apparent that the same necessity existed for naming the parties, if known, in a charge brought under section 217 as when brought under the preceding section. • The highest court of the state from which the statute was adopted having passed upon the cpiestion, the presumption obtains that the legislature of this state in adopting, the statute did so in the light of the construction given it by the supreme court of Ohio from which it was borrowed.

The information was defective in the respect named, and we recommend a reversal of the judgment.

Pound and Kirkpatrick, CO., concur.

By the Court: For the reasons stated in the foregoing opinion,vthe judgment of the district court is

Reversed.