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 essential requirement of criminal pleading where conviction is followed by penal consequences One of its objects is notice to the party of the nature of the charge, so as to enable him to defend against a second prosecution of the same crime by pleading a former acquittal or conviction. The certainty required in an indictment, says Mr. Bishop in his work on Criminal Procedure, depends often upon properly choosing between “and” and “or” as the conjunction, and he lays down the rule that whenever the conjunction “or” would leave it uncertain which of two things is meant, it is inadmissible, and 'in its stead “and” may be employed. If a statute makes it a crime to do this or that or that, mentioning several things disjunctively, all may indeed, in general, be charged in a single count, but it must use the conjunctive “and” where “or” occurs in the statute, else it will be defective as being uncertain. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction “and” where the statute has “or” and it will not be double, and it will be established at the trial by proof of any one of them. Bishop on Criminal Procedure, sections 436-586; Archbold's Crim. P. & P., vol. 1, 283, note 1 ; Wharton’s Crim. P. & P., 161 ; Chit. Crim. Law, 231, and cases there cited ; 10 Amer. & Eng. Encly. of Law, 599. 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, — 346 — says: “The Court pursues the language of the statute in describing the enumerated games or tables, except that it substitutes the conjunctive “and” for the disjunctive “or,” and in so doing it charges really but one offence, to-wit, the keeping and exhibiting all the games or tables named at the same time and place, and such count is supported by proof of the keeping or exhibiting of any one of the games or tables mentioned.” And in Tierman’s case, 4 Graft. 545, it was held that an indictment charging in conjunctive form an unlawful playing and betting, where the statute made it unlawful to play or bet, was not bad for duplicity. And the cases of Rasnick v. Com., 2 Va. cases, 356; Wingard v. State, 13 Geo. 396; Hinkle v. Com., 4 Dana, 518; Ainsworth v. U. S., 1 Appeal Cas. D. C. 518, and numerous decisions in other States are to the same effect. 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 — 347 — ment reversed. This reversal, however, does not relieve the party from further liability. He w.as not tried on a valid information and was not put in jeopardy. He can be re-arrested, and upon a new information can be tried again. State v. Williams, 5 Md. 82 ; Hoffman v. State, 20 Md. 425. (Decided June 18th, 1895.) Judgment reversed and information quashed with costs.