42 Md. 563 | Md. | 1875
delivered the opinion of the Court.
The record proper in this case does not embrace the demurrer to- the indictment, but it appears from a .copy of the docket entries of the proceedings in the Court below, appended to the record, that there was a demurrer interposed to the indictment before the plea of not guilty was pleaded, and that such demurrer was overruled. And although not properly presented, yet, inasmuch as it has been argued by the counsel for the appellant as if it were regularly before the Court, in order to save further trouble, and prevent delay, we shall so consider it.
The indictment contains eight counts; six on the statute against gaming, and the two last for keeping and maintaining such a common gambling house as to constitute a
In this case, the jury having found the appellant guilty of the offence as charged in the third count only, and not guilty as to the other counts of the indictment, the question, whether the counts, other than the third count, contain sufficient charges of the offence, has become quite immaterial, and is not open to review.
And as to the third count, we think it sufficiently charges the offence within the statute. It avers that the appellant, at a certain time and place, did, for gambling purposes, then and there heep a certain place, to' wit, a certain room in his hotel, for gambling then and, there, contrary to the statute.
The offence is not confined to keeping a gaming table, hut the keeping of any house or other place, for the purpose of gambling, is within the letter of the law. And in an indictment under this statute, it is not necessary to set forth the particular kind of gaming allowed, or the particular kind of gaming table kept by the accused; Code, Art. 30, sec. 85 ; but it is sufficient to charge the offence in the terms of the statute, ás has been done in this case. People vs. Beatty, 14 Cal., 566; Spratt vs. The State, 8 Miss., 247; The State vs. Ward, 9 Texas, 370; The State vs. Elborn, 27 Md., 483. It is clear, therefore, that the third count is sufficient; and we do not in the least intimate that all the others in the indictment are not equally good.
There was a motion in arrest of judgment, which was also overruled ; hut there were no reasons assigned for the motion, and we discover in the record no ground upon which the motion could have been sustained; and we shall therefore take no further notice of it.
There were two exceptions taken by the appellant to rulings of the Court, in the course of the trial. The first was with respect to a question of evidence, and it arose thus:
After the State had offered evidence by several witnesses in support of the indictment, the counsel for the appellant proposed to ask one of the witnesses, on cross-examination, whether he, the witness, had any knowledge of the traverser keeping, or having kept a gaming table, or of his keeping or having kept any room or place for gambling, or for the purposes of gambling, &c.; to which the State objected, and the Court sustained the objection, and re
This ruling of the Court, we think, was entirely correct. To have answered the question as proposed to he asked, it would have required of the witness to form a conclusion as to the matter of inquiry that the jury alone were competent to determine. He would have been required to respond to a question of law as well as of fact; to define what constituted a gaming table, and what the keeping a room or place for gambling, within the meaning of the statute. This he was incompetent to do. His idea of a gaming table, or a place kept for gambling, may have been quite different from the definitions of those things in the law. He should have been asked simply his knowledge of fact pertinent to the issue joined, without being required to form an opinion respecting the very point which the jury were to determine. Such a question would not he allowable even to an expert. 2 Taylor’s Ev., 1229.
The second exception was taken under the following circumstances:—
After the close of the evidence, and the case had been fully argued to the jury, and the jury had retired to consider of their verdict, and had remained in their room unable to agree for about sixteen hours, they addressed to the Court in writing a 'communication, requesting to he informed, “ whether the charge contained in the third count of the indictment must be confined to the first day of January, 1874,” the particular time mentioned in that count. This communication was received in open Court, and was announced to the counsel both of the appellant and the State. To this inquiry, the Court prepared a response in writing, which it proposed to send to the jury-room ; and that response was, that it was sufficient, if the jury found the offence charged on the day mentioned, or at any other time between that day and the day of finding the presentment; — that such was the opinion of the Court, by which, however, the jury was not hound.
To the sending the reply of the Court to the inquiry of the jury, as proposed, the counsel of the appellant objected, and insisted that if any instructions were given to the jury at that stage of the case, the jury should be brought into open Court, and there be instructed by the Court on the law of the case, on such prayers as the counsel on either side might submit, and notified the Court that the appellant desired the jury to be instructed in accordance with a prayer, which was then read, and which is set out in the record. The Court, notwithstanding this objection, and the request that the jury should be brought in, to be instructed, declined to have the jury brought from their room, but sent the written response to them by the bailiff; whereupon an exception was taken.
In the course pursued by the Court we can perceive no manner of objection whatever. It was certainly within the power if not the duty of the Court to respond to the inquiry of the jury, and as it is not pretended that that response stated anything inconsistent with law, or that it was in the least manner calculated to mislead the jury in their finding, we are at a loss to understand upon what principle this Court can be expected to reverse the ruling of the Court below, unless it be that the jury should have been brought into Court to receive the response to their inquiry. But why bring in the jury to receive such a response ? It would have been but an empty form, unless it be true, as contended by the counsel for the appellant, that it was his right to have the jury fully instructed upon the law of the case. But this Court entertains no such opinion as that. The case had been fully argued before the jury, both upon the law and the facts, and had been submitted to the jury for their consideration and decision. The time had, therefore, past when the parties could right
Rulings affirmed, and cause remanded for judgment.