Wheeler v. State

Alvey, J., 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 ⁵⁶⁶ nuisance at the common law.

The demurrer was to the whole indictment, and one of the grounds of demurrer urged is, that such counts could not, properly, have heen joined in the same indictment. But in this we do not agree. For it is the well established and constant practice, to charge offences, though differing from each other, and varying in the punishment authorized to be inflicted, in separate counts of one indictment, and to try the accused upon the several charges at the same time, provided the offences be of the same general character, differing only in degree. Burke vs. The State, 2 H. & John., 427; Manly vs. The State, 7 Md., 135 ; 1 Whar.

Cr. L., sec. 414. In misdemeanors, the joinder of several offences will not, in general, vitiate the prosecution in any stage of it; and an indictment may contain counts under a statute and also at common law, as in the present instance. 1 Chitty Cr. L., 254; 1 Whar.

Cr. L., secs. 414, 415; Com. vs. Birdsall, 69 Penn., 482 . And if the indictment contain two distinct and independent charges for two separate offences, and the defendant demurs generally, though one of the offences be not indictable, or be insufficiently alleged, there will be a judgment for the State, upon the count which is valid, for the indictment may be good in part, although defective in other parts of it. 1 Chitty Cr. L., 443.

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. ⁵⁶⁷ The Code, Art. 30, sec. 56, provides, that “Ho person shall keep any gaming table, or any house, vessel or place, on land or water, for the purpose of gambling;” and hv sec. 59, “Any person keeping a gaming table, or other place for gambling, shall be deemed guilty of a misdemeanor, and on conviction thereof,” &c. 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 ⁵⁶⁸ fused to allow the question to be put to the witness in that form. 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