Bibb v. State , 83 Ala. 84 ( 1887 )

SOMEBTVILLE, J.

— The indictment charges, omitting the formal parts, that the defendant “kept or exhibited a gaming-table for gaming, or was interested or concerned in the keeping or exhibition thereof.” •

1. Section 4208 of the Code of 1876, before amendment, provided, that “any person who keeps, exhibits, or is interested or concerned in keeping or exhibiting any table for gaming, of whatever name, kind or description, not regularly licensed under the laws of this State, must, on conviction, be fined not less than one hundred, nor more than one thousand dollars; and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months.” — Code, 1876, § 4208.

On February 10th, 1887, this section was amended, so as to expressly declare, that such person shall be guilty of a felony, and provided that, “on conviction thereof, (he) must be fined not less than one hundred, nor more than five hundred dollars, and shall also he imprisoned in the penitentiary, for not less than six months, nor more than two years; and on a second, or any subsequent conviction, shall be imprisoned in the penitentiary, for not less than two, nor more than five years.” — Acts, 1886-87, p. 142.

"It is observable, that the keeping of a gaming-table was, under section 4208 of the Code of 1876, only a misdemeanor, punishable by fine, and imprisonment in the county jail, or sentence to hard labor for the county. The amending act makes it a felony, punishing the offense, not only by fine, but by imprisonment in the penitentiary. A conviction of felony in this State — by which is meant any public offense which may be punished by death, or by confinement in the penitentiary — not only operates to terminate the right of the convict to execute the office of executor, administrator or guardian, and extinguish all private trusts not susceptible of delegation by him, but also disqualifies him from holding office, or exercising the privilege of the elective franchise. Code, 1876, § 4511; Washington's case, 75 Ala. 582. The two classes of crimes, therefore, misdemeanors and felonies, are signally distinguished, as to the nature of their punishment, and their legal effect upon the civil rights of the citizen.

The indictment does not allege when the act charged was done. ' It does not show whether it was committed before the act of February 10th, 1887, was passed, or afterwards. It does not, therefore, make it apparent whether the accusation brought against the defendant is a misdemeanor, or a felony.

It is objected that this defect was fatal to the indictment; and we are of opinion that this point is well taken. In view of the fact that the indictment was found on July 15th, 1887, and the amendatory act, entirely changing the nature and punishment of the offense charged, was only enacted on February 10th, 1887 — or about five months previous — the indictment should have stated the time when the offense was committed, or else have shown that it was after the date of the new law making it a felony. At common law, it was formerly necessary to aver the time when the crime was committed. It is provided by statute in this State, that it is unnecessary to state the precise time, but only that the offense charged was committed before the finding of the indictment, “unless time is a material ingredient of the offense.” — Code, 1876, § 4788; Code, 1886, § 4373. This principle is broader than the more recent common-law rule, which provided, that the time of committing an offense need not be averred, except when it “entered into the nature of the offense,” but might be laid on any day "previous to the time of finding the bill, within the period in which it could be prosecuted before a bar under the statute of limitations. Shelton v. State, 1 St. & P. 208; Wharf Cr. Pl. & Pr. (8th Ed.), § 120. The crime of burglary, which was required to be. committed at some hour of the night, and offenses against the Sunday law, were examples of this kind. But the statute, in our opinion, goes further than this. It makes the averment of time necessary, when it is an element which affects the guilt or innocence of the party charged, or the grade of the crime, at least within the period before the finding of the indictment when the crime could be prosecuted.

The reason of this is apparent. The accused has a constitutional right to “demand the nature and cause of the accusation” against him, and to “have a copy thereof.” — Const. 1875, Art. I, § 7. The indictment is the written accusation in the prescribed constitutional form. "Where the indictment is, on its face, so ambiguous as not to show whether it charges a misdemeanor or a felony, it is liable to the objection of ■uncertainty, and does not conform to this requirement. It is not a copy of the real accusation against the defendant.

There is another test which seems equally fatal. • If the defendant should plead guilty to this indictment, or the jury should find him guilty “as charged,” how could the court look at the record and know what judgment to pronounce— whether to refer the verdict to the misdemeanor, or to the felony — whether to sentence the defendant under section 4208 of the Code, as it originally stood, or as amended by the new law of February, 1887 ? These reasons seem to us to be sufficient to render the indictment fatally defective.

The case of State v. Wise, 66 N. C., 120, is one in every respect analogous to the present one. The defendant there was indicted for burglary, and the indictment failed to state when the offense was committed. By a statute passed in 1869, this crime was punished by confinement in- the penitentiary. By an amendatory act, which went into effect April 4th, 1871, it was made punishable by death. It was held by Chief-Justice Pearson, speaking for the whole court, that the indictment should have averred the time when the burglary was committed, so as to show on its face whether the punishment of confinement in the penitentiary, or of death, under the one or the other statute, should be assessed. In McIntyre's case, 55 Ala. 167, a principle was settled bearing in analogy upon this question. A law was passed and went into effect on the first of April, 1875, requiring a license from any person who engaged in “the business of taking pictures.” It was held that an indictment found in July of that year, which was within less than twelve months from the passage of the act — the period of the statutory bar for the prosecution of misdemeanors — was fatally defective for failing to allege that the act was committed after the law. went into effect. Otherwise it may have been so construed as to charge no offense. — 1 Bish. Cr. Pro. (3d Ed.), § 404.

The case of Harris v. The State, 60 Ala. 50, is distinguishable from this case. The indictment there showed that it was found under the new statute, pursuing it strictly by averring a larceny of “a part of an outstanding crop of corn,” the property of a named owner. So, in Adams v. The State, 60 Ala. 52, the averment of time was not regarded as necessary to remove the supposed ambiguity of the charge, as being either a misdemeanor or a felony, because at the time the indictment was found the misdemeanor was barred. Hence, the verdict of guilty necessarily referred to the felony — grand larceny — which was not barred by limitation of time. A like remark may be made of Harris' case, supra. These rulings accord with the views of approved text-writers. 1 Bisk. Crim. Pro. (3d Ed.), §§ 622, 404; 1 Chitty Crim. Law, 285.

Eor this imperfection in the indictment, the judgment must be reversed. In the event of a new trial, we think it necessary to decide such other questions raised by the record as may be pertinent to the issues likely again to arise..

2. As to the form of the indictment, our opinion is, that Form No. 28, prescribed by the Code of 1876, p. 994 — designated as Form 54, Code of 1886, p. 373 — is sufficient, if coupled with the proper averment as to the time when the offense was committed, showing that it was after the act of February 10th, 1887, went into effect, which could not be prior to thirty days after the adjournment of the last General Assembly, the act itself not specially providing otherwise. Code of 1886, §§ 3705, 4366, 4899. This form requires no averment that the table kept was not one licensed to be kept under the laws of the State. If such was the fact, it was mere matter of defense. Even in those cases where the forms of indictment are required to allege the non-existence of such excepted case, it does not devolve on the State to show that the defendant had no license, but on the defendant to show affirmatively that he had. — Porter & Co. v. State, 58 Ala. 66.

3. If the offense occurred previously to this time, it could still be prosecuted under section 4208 of the Code of 1876, as it existed prior to the amending act, that law still remaining in force as to all offenses committed before its revisal or amendment by the act of February, 1887. — Code of 1886, §§ 10, 3706; Miles v. State, 40 Ala. 39; Miller v. State, Ib. 54; Stephen v. State, Ib. 67; Wade v. State, Ib. 74; Tempe v. State, Ib. 350.

4. The defendant’s plea of guilty, when he was arraigned for violation of the municipal ordinance of the city of Montgomery, set out in the record, was both relevant and competent evidence against him in this case. It is true this ordinance denounced two several offenses — the keeping of a gambling saloon or house, and the keeping in one’s possession of any table, cloth, box or other device, used for the purpose of gaming. But this plea of guilty was accompanied at the time by an oral statement made by the defendant, in which he confessed that he had been engaged in keeping a gaming-table since tbe enactment of tbe new law, making tbe offense a felony. Tbe Becorder’s docket, and tbe affL davit and warrant in the case before tbat court, were properly admitted in connection with tbe ordinance.

5. Tbe offense of keeping a gaming-table may be committed by a single act, or it may be one continuous in its nature, and may, therefore, be proved by one act, or a series of acts, showing tbe requisite criminal intention, by tbe proper measure of proof. Tbe guilty party need not necessarily be engaged in the business of keeping such table, any more than one who keeps a restaurant, or keeps open store on Sunday contrary to law. — Huttenstein's case, 37 Ala. 157; Dixon's case, 76 Ala. 89. For this reason, it was competent to show by tbe witness Martin, that be bad beard on several occasions tbe “rattling of chips,” such as are commonly 'used in playing tbe game of poker, going on in the room admitted to be occupied by tbe accused, and on one occasion, accompanying such sounds, words indicative of a proposal to bet money. These facts were relevant to show tbat tbe defendant was guilty of tbe charge of keeping a gaming-table for gaming.

6. Any table, kept and used for gaming, has been held by this court to be “a table for gaming,” within tbe meaning of tbe statute. Tbe main inquiry for tbe court and jury, therefore, has reference to the use for which tbe table is kept or exhibited, for it is this use tbat characterizes its criminality] Toney v. State, 61 Ala. 1; Wren v. State, 70 Ala. 1. If tbe table so used for gaming, is kept or ex-' bibited anywhere, not being regularly licensed under tbe laws of this State, such keeping or exhibition is a violation of tbe law — it ’matters not whether tbe place is public or private. Tbe statute is aimed at tbe evil of gaming, and no exception is made as to place. A table for tbe use prohibited by tbe statute is no more allowed to be kept in the dark than in tbe open day, or in a private room than in a hotel, or a restaurant. Tbe evidence, therefore, offered'by tbe defendant, which tended to show tbat tbe room, in 'which' tbe table was alleged to be found, was bis private bed-room, in which be slept and bad bis meals prepared, was entirely irrelevant. Nor did it avail tbe defendant anything tbat this table was ordinarily used by him to eat bis meals on, any more than a like excuse would avail a keeper of a pool or faro-table. This evidence bad no tendency to show tbat tbe table in question was not used for gaming in violation of the statute. ■

7. The charges of the court raise an inquiry as to the punishment to be inflicted under the provisions of this law. On this point we think there can be no doubt. The violation of this law is declared to be a felony, and the penalty affixed is not fine or imprisonment, but both the one and the other. The language is, “ shall be guilty of a felony, and, on conviction thereof, must be fined not less than one hundred, nor more than five hundred dollars, and shall also be imprisoned in the peniteniary, for not less than six months, nor more than two years,” &o. Acts, 1886-7, p. 142. The case is not one of an offense which may be punished by imprisonment in addition to a fine, and where the jury have a discretion as to whether or not this penalty shall be assessed. Code, 1886, § 499. It is one where it is imperative, by the mandate of the statute itself, that the jury must, without discretion except as to the amount, impose a fine within the prescribed limits; and the court must also sentence the defendant, when found guilty, to imprisonment in the penitentiary, for not less than six months, nor more than two years.

8. The statute of February 10th, 1887, being more recent than the new Code, and as to this particular offense repugnant to the provisions of section 4492, is not governed by that section specifying the legal punishments fixed by the general law, and regulating the mode of their imposition. In this case, the fine was properly assessed by the jury, and the imprisonment by the court. Code, 1886, §§ 4494, 4499; Acts, 1887, p. 142.

9. The bill of exceptions only purports, in some parts of it, to set out what the evidence tended to prove — not all the facts as testified to bearing on the defendant’s guilt. It is proper to say that it did not, on this account, justify the giving of the general affirmative charge in favor of the State, leaving,-as the evidence did, conflicting inferences to be drawn by the jury.

The judgment is reversed, and the cause remanded. The defendant will, in the meanwhile, be held in custody until discharged by due process of law.