28 App. D.C. 32 | D.C. | 1906
delivered the opinion of the Court:
The errors assigned are threefold, but they raise but two questions, the first being that the court erred in not granting the motion to dismiss the charge and discharge the defendant from custody upon the ground that the evidence offered by the government failed to prove that the room where the game was played was in the possession or,under the control of the defendant, — that it was insufficient to prove the charge as alleged in the information; and the second being that it was error to hold that one act constituted the offense alleged in the information.
Before considering the alleged errors it may be said that section 866 of the Code is one of four, — the others being 865, 867, 868 [13 Stat. atL. 1331, chap. 854], — relating to gaming within the District of Columbia. Section 865 is intended to reach and punish those who set up or keep the gaming table. It provides, in substance, that whoever shall, in the District, set up or keep any gaming table, etc., for the purpose of gaming, or shall induce, entice, or permit any person to play or bet at or upon the
Section 866 is as follows: “Whoever, in the District, knowingly permits any gaming table, bank, or device to be set up or used for the purpose of gaming in any house, building, vessel, shed, booth, shelter, lot, or other premises to him belonging, or by him occupied, or of which at the time he has possession or control, shall be punished by imprisonment in the jail for not more than one year, or by a fine not exceeding $500, or both.”
Each section refers to a separate and distinct offense. One makes it unlawful to set up a gaming table, the other unlawful to knowingly permit some other person to set up such a table under certain conditions.
Section 867 need not be considered.
Section 868 provides that the court shall construe the preceding sections liberally, so as to prevent the mischief intended to be guarded against.
That the evidence was sufficient to show that the defendant had violated section 865 by setting up a gaming table is abundantly proved. As the information charges him with an offense' not referred to in section 865, but with the offense set out in section 866, the evidence, in order to uphold the conviction under the latter section, must show that that section was violated by the defendant. It is contended, on the part of the government, that weight should be given to section 868, which requires that the preceding sections shall be liberally construed. It can hardly be maintained, even conceding that that section is to be given any weight, that evidence showing, or tending to show, that one section may have been violated, warrants a conviction of an offense set forth in another section, unless it shows that the defendant has violated such other section upon which the information is founded. This being so, it is necessary to consider whether the testimony was sufficient to warrant a conviction, and whether the question of its insufficiency was properly raised in the court below.
1. It is urged as the first error that the court should not have overruled the motion to dismiss the charge and discharge the defendant from custody. That motion was made when the govern-
In order to warrant a conviction under section 866 it is necessary that a defendant shall knowingly permit a gambling device to be set up or used for the purpose of gaming upon premises owned or occupied by him, or of which at the time of the commission of the offense he has possession or control. In the case at bar it is not contended that the premises upon which the alleged offense was committed belonged to the defendant, or that it was occupied by him, other than that he was present in the room and had therein set up a gaming table. On the contrary, it affirmatively appears that the defendant was never seen at this pool room at any other time than the single night in question. Nor is there any evidence that he was “in possession or control” of the room within the definition properly applicable to those words as used in the section. Possession, in law, as that term is used in the section, must mean some right of power over or in the premises for the time being at least. And to have control of the premises must mean, also, the right to exercise some power relative thereto. The evidence not only fails to show that the defendant, at the time of the commission of the alleged offense, had possession of, or control of, the room, but the government affirmatively showed that another, one Jesse Johnson, was in possession and control of the pool room, and that he represented its owner. The authorities cited by the government to show that the defendant’s presence in the room was tantamount to its possession and control by him have been examined, but do not seem to be in point. It may be admitted that it is not necessary that the defendant should have had permanent possession of the room, or that he should have been the lessee or keeper of the room; and it may be further admitted that he would have been liable as an agent, or servant, or as temporarily in charge of the room. The authorities do not seem to go beyond this. But the difficulty with the case is that the evidence utterly fails to show any such agency, serví-
It is, however, contended upon the part of the government that the defendant lost the advantages of his motion to dismiss the charge and for his discharge by adducing testimony after such motion was denied.' Had such testimony offered on behalf of the defendant been of a nature to show that he had abandoned the motion, and had the evidence given related to the merits of the case, the contention would be entitled to more weight. But the testimony given had no bearing upon the question at issue. As we have noted, it related to the condition of the defendant’s family, and that he had never been in trouble before. It did not negative or strengthen the facts proved by the government. It had nothing to do with the issue. It could only serve to lead the-court to impose a light' punishment.
It would be a harsh rule to apply, provided the defendant was found guilty, to say that a defendant, by the introduction of such testimony, waived a motion that he be discharged from custody and the charge dismissed because the evidence was insufficient to prove the charge.
2. It is also urged on behalf of the defendant that the court erred in holding that one act was sufficient to constitute the offense alleged in the indictment. This may be disposed of in a single word. Had the government shown that the defendant had. once knowingly permitted gaming on premises owned or occupied by him and at the time in his possession or control, it would have been sufficient to support a conviction. The section imposes no condition as to a repetition of the offense. To knowingly permit an offense of this nature to be committed once is clearly sufficient. There would have been no reason for Congress to provide that the act should not be punished unless it was repeated. We do not consider this assignment well taken.
For the reason that the record fails to show any violation of section 866 of the Code, upon which the information was based, the decision of the police court was erroneous, and its judgment must be reversed, and the cause remanded, with direction to discharge the defendant. It is so ordered. Reversed.