Stearns v. State

Briscoe, J., 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. ³⁴⁴ 2nd.

Because the information did not allege the kind of race upon which the book or pool was sold or bet made, but charged the same in ■ the alternative as being a trotting or running race, without specifically alleging the one or the other, and 3rd. Because of duplicity, in that each' count charges several distinct offences. 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 ³⁴⁵ ning race of -horses, or race of aiiy kind, or to establish, keep, rent or use, or knowingly suffer to be used or occupied, any house, building or portion of a building, vessel or place, on land or water, for the purpose of making or selling therein any book or pool or of otherwise betting therein or thereon, upon the result of any trotting race or running race of horses or race of any kind, except upon the. grounds of any agricultural association within a limited period in any one calendar year. Now, it is well established that certainty to a reasonable extent is an