81 Md. 341 | Md. | 1895
delivered the opinion of the Court.
The appellant was tried and convicted in the Circuit Court for Anne Arundel County under a criminal information filed by the State’s Attorney for that county for unlawfully gambling, contrary to the Act of 1894, chapter 232. The information contains five counts. The first charges the appellant with unlawfully gambling on the result of a certain trotting race or running race on the Sheepshead Bay race track, in the State of New York ; second, with unlawfully making books and pools on the result of a certain trotting race or running race of horses on the same race track; third, with unlawfully keeping in Anne Arundel County a certain place, to-wit, a house for the purpose of making or selling therein books or pools or betting therein on the result of a certain trotting race or running race on the same race track ; fourth, for using a certain place there, to-wit, a house for the purposes aforesaid; and fifth, unlawfully did knowingly suffer such house to be used for the purposes aforesaid.
To these counts a general demurrer was interposed which was overruled by the Court. The appellant then waived his right to plead over, Vas convicted and from the judgment so entered against him this appeal has been taken. The main grounds of error assigned and relied upon by the appellant are: 1st. Because the information omits to negative the exception contained in the proviso of the statute.
In support of the first objection it is contended that the information is defective, because all the counts omit to negative the exception contained in the statute (Act of 1894, ch. 232), which provides that nothing in this section shall render it unlawful for any person to make a pool or a book or to bet within the grounds of any agricultural association or upon any horse race which shall be held within the same grounds within a limited period. But this objection we are of opinion cannot be sustained. The averment in each' of the five counts of the information distinctly sets forth that the offence was committed in Anne Arundel County, while thé race was at Sheepshead Bay race track, in the State of New York. The allegation that the race took place at a certain race track in the State of New York' manifestly negatives the exception in the statute that the race was held within the grounds of an agricultural association within this State. Where a statute contains an exception so incorporated in its enacting clause that the one cannot be read without the other, the indictment or information must negative the exception. But when, after general words of prohibition, an exception is created in a subsequent clause or section, it must be interposed by the accused as matter of defense. But in this case the exception contained in the proviso of the statute is sufficiently negatived by the averment in the information itself.
The second and third objections made by the plaintiff in error to the information we however think are well taken. The Act of 1894, chapter 232, upon which this information is based, provides that it shall be unlawful for any person or persons or association of persons to gamble or make books and pools on the result of any trotting race or run
And in Leath v. Commonwealth, 32 Grattan, 873, the Court of Appeals of Virginia in passing upon an indictment upon a statute, a case somewhat similar to the one here,
It seems to us, then, that the information in the case here is clearly defective for duplicity. In all of the five counts the alleged offence is charged disjunctively or in the alternative. The pleader could have inserted separate counts charging the several offences, and the party would have been convicted if warranted by the proof of either offence; or the conjunctive “and” could have been substituted for the disjunctive “or” where there was one offence, and as we have seen, the information would not have been bad for duplicity or repugnancy. But it is insisted upon the part of the appellee, that assuming the first and second counts to be defective, the offence of keeping or using, or suffering to be used, a house for the purposes prohibited by the statute, is sufficiently alleged in the third, fourth and fifth counts of the information. It will, however, be observed that the offence under the statute is for keeping a house for some one of the purposes mentioned therein, and all of these purposes are distinctly alleged in each count in the disjunctive or alternative. It is therefore sufficient to say that they are equally open to the same objection as applies to the first and second counts, for the reason heretofore assigned by us.
The demurrer will therefore be sustained, and the judg
Judgment reversed and information quashed with costs.