Donniger v. State

Wordest, J. Indictment, charging that, on, etc., at, etc., “ Herman Link and Joseph Donniger, who were then and there the owners ofj and having the care, management and control of a certain billiard table, at said county, and did then and there unlawfully allow, suffer and permit Frank Gavin, who was then and there a person under the age of twenty-one years, to play a'certain game said table, called pool.” The defendants moved to quash this indictment, but the motion was overruled, and they excepted. On trial by the court, Link was acquitted, but Donniger was convicted. The latter appeals, and has assigned for error the overruling of the motion to quash the indictment. The indictment is based upon the following statutory provision, viz.: “ That if any person owning or having the care, management, or control of any billiard table, bagatelle table or pigeon-hole table, shall allow, suffer or permit any minor to play billiards, bagatelle or any other game at or upon such table or tables, he shall be deemed guilty of a misdemeanor,” etc. Acts 1873, p. 30, sec. 1. The indictment in this case does not allege that the minor was allowed to play the game of pool at or upon the billiard table, and in this respect it seems to be defective. The [327] omission of the word “ on ” before the words “ said table,” as they occur in the indictment, may have been a clerical ■error in the transcription, but if so, this. error could have been corrected, which has not been done. We must take the indictment as we find it in the transcript that comes up to us. The indictment is also defective in another particular. Jt does not state the name of the person with whom the minor was suffered to play the game. This was necessary. Zook v. The State, 47 Ind. 463. The court below erred in not sustaining the motion to quash the indictment. The judgment below is reversed, and the cause remanded for further proceedings, in accordance with this opinion.