Sparks v. State , 88 Ark. 520 ( 1908 )

Hart, J.

On the 24th day of December, 1907, the appellant, Rudson Sparks, committed the crime of gaming in Sevier County, Arkansas, and Clyde Slaton, a minor under the age of twenty-one years, took part in the same game. At the January term, 1908, of the Sevier Circuit Court, appellant was indicted on a charge of gaming, based on and growing out of the above-named act. He entered a plea of guilty, and a fine of ten dollars was assessed against him. Subsequently, at the same term of the court, appellant was indicted for gaming with a minor, based upon the same game for which he had been previously convicted of gaming. To this indictment appellant entered a plea of former conviction based upon the facts above set forth.

The court below declared the law as follows: “A conviction for gaming in the circuit court is not a bar to a subsequent prosecution in the same court for gaming with a minor, growing out, based upon and embraced in the same identical act upon which the conviction for gaming was -had.” The court found appellant guilty of gaming with a minor, and assessed his punishment at a fine of fifty dollars. An appeal has been duly prosecuted to this court.

Section 2514 of Kirby’s Digest reads as follows: “Whenever any party shall have been convicted before any police or mayor’s court or before any justice of the peace or circuit court, said conviction shall be a bar to any further prosecution before any police or mayor’s court or before any justice of the peace or circuit court for such offense or for any misdemeanor embraced in the act committed,” etc.

Under the facts of this case, the only question raised by the appeal is whether the crime of gaming with a minor was embraced in the act committed.

“The established rule is that the former conviction is a bar to the subsequent indictment for any offense of which the defendant might have been convicted under, the indictment and testimony in the first case.” State v. Nunnelly, 43 Ark. 70. The same ruléis announced in the case of Ruble v. State, 51 Ark. 170.

The lowest penalty for gaming is ten dollars, and for gaming with a minor- fifty dollars. The two statutes are aimed at different sources of-evil. The former is intended to suppress gambling; the latter to prevent the corruption of youth of the State. The first indictment was for gaming. That fact was confessed by the plea of guilty. But the confession of this crime does not constitute the crime of gaming with a minor. There is an added element to the latter offense. To sustain a conviction for it, there must also be proof that one of the players was a minor.

In the case of State v. Morris, 45 Ark. 62, the court in an opinion delivered by Cocicrirr, C. J., held that the offense of exhibiting a gambling device created by the first section of the gaming act and that of knowingly permitting the device to be exhibited in a house owned or occupied by the accused, found in the fourth section of the same act, were not the same but distinct offenses; and for that reason required the prosecuting attorney to elect upon which count he would proceed.

In -the present case the two acts are intended to suppress different evils. A new element is added- to one of them. The punishment is made greater, and we are of the opinion that they are distinct offenses.

The judgment is therefore affirmed.

Opinion delivered January 11, 1909.