Wingard v. State , 13 Ga. 396 ( 1853 )

By the Court.

Lumpkin, J.

delivering the opinion.

It will be perceived that there is but one count in this indictment, and upon this the defendants were separately tried and convicted. And to procure a reversal of the judgment, they allege—

■* [1.] That the indictment was radically defective, in uniting-several distinct and'incompatible offences in one count, to wit: the crime of playing and betting for money with cards, at a game of “ poleer, whist, faro, seven up, three up, and other games played with cards,” and that the Court refused to compel the Solicitor General to elect for which of said offences he Avould try the defendant.

Recently, and especially under our Code, less particularity is required in criminal pleadings than formerly. And this is right. No guilty person ought ever to escape on account of a technicality. If the Code is not broad enough already to prevent this, the Legislature should never cease the work of reform, until this end is attaiñed.

This indictment is framed uron the Statute of 1847, (Cobb’s Digest, 820,) which is substituted for the 11th section of the 10th division of the Penal Code. It enacts, that “ if any person shall play and bet for money, or other things of value, at any game of faro, loo, brag, bluff, three up, poker, vingtune, euchre, or any other game or games played with cards ; or shall play and bet for money, or other things of value, at any E. O. or A. B. C. table, or other table of like character, or shall bet at any game of ninepins or tenpins, or of any other number of pins, such person, so offending, shall, on conviction, be fined in a sum not less than twenty dollars, nor more than one hundred dollars.”

Now, it might be contended with some force, that it would be inadmissible to unite in one count, any one of the games designated in the first clause of this Statute, as brag or bluff, with a game at an E. O. or A. B. C: table, and another with ninepins. There would be an incongruity in these several games, which would make it manifestly improper to jumble them together in the same count. But a count which unites two or more of the various games enumerated in the first clause of the Act, is not liable to this objection. True, the offence is consummated by playing and betting at any one of them.' But we apprehend that the playing and betting at the whole at the same sitting, and between the same parties, would constitute but a single offence. Would it be argued, for a moment, that if two persons were to sit down and play and bet for an hour at cards, changing their game from time to time until they had run through the entire catalogue mentioned in the Act, that each and every variation would constitute a separate and distinct offence ? Surely not. Then there is no confusion in pursuing the words of the Statute in describing the offence, as is done in this indictment.

But were it even true, that the playing and betting at each one of the games set forth in the Act," or at any other game played with cards, constitutes a distinct and separate offence, still there is no rule of pleading which forbids them from being joined in the same count.

By reference to the British books, they abound in similar forms. Thus, in Ghitty, there is a count under 45 Geo. III ch. 89, “ for that the prisoner did falsely make, forge and counterfeit, and cause and, procure to be falsely made, forged and counterfeited; and did willingly aid and assist in the false making, forging and counterfeiting,” &C — pursuing the very words of the British Statute, .as the count under consideration does ours. 3 Chitty’s Criminal Law, p. 1049. And many like precedents may be found in the same book. Ibid, 1048, 1052. And yet no one ever thought of questioning the sufficiency of these indictments. Still, it must be conceded, that the incompatibility between the act of counterfeiting ourselves and causing it to be done by another, is. much more striking than playing at three up and seven up with cards.

Under a Virginia Statute, the language of which was precisely the same as that of George III. the General Court refused to entertain an objection to the indictment, upon the ground that it charged distinct offences in the same count. Ransack vs. The Commonwealth, 3 Va. Cases, 356.

So where a Statute makes two distinct acts connected with the samp transaction, indictable, it has often been ruled, that they may be coupled in the same count. Thus, setting up a gaming table may be an entire offence, and inducing others to bet fipon it, may constitute, also, a distinct offence; for either, unconnected with the other, an indictment will lie. Yet when both are perpetrated by the same persons, at the same time they constitute but one offence, for which one count is sufficient, and for which but one penalty can be inflicted. Kinkle vs. The Commonwealth, 4 Dana, 518.

[2.] The objects in requiring particularity in setting out an offence are—

First, in order to identify the charge, lest the Grand Jury should find a bill for one offence, and the defendant be put on his trial in chief for another.

Secondly, That the defendant’s conviction or acquittal may inure to his subsequent protection, should he again be questioned on the same grounds.

Thirdly, In warranting the Court in granting or refusing any particular right or indulgence incident under the law to the case.

Fourthly, To enable the accused to determine on the line of his defence, and prepare for it, both as to the law and facts. And

Fifthly, And finally to put it in the power of the Court to look through the record, and decide whether the facts charged, are sufficient to support a conviction for a particular crime, and to warrant the judgment; also, to regulate the appropriate punishment for the particular offence.

I need scarcely remark, that all these objects are amply secured under this indictment.

[3.] The next error complained of is, that the indictment charges no time or place, at which the offence was committed.

This objection can only be determined by inspection. The indictment alleges, that the offence was perpetrated on the 23d day of May, 1851, in the County of Baker. More certainty is not necessary.

[4.] The remaining exception is to the charge of the Court, which was as follows: “ That if it was proven that the defendant did play and bet at a game with cards for money, at any time previous to the finding of the bill of indictment found by the Grand Jury, and since the preceding term of the Court, he was guilty.”

We are of the opinion, not only that the Court was right, to the extent to which it went, but that it might have gone further, and instructed the Jury, that it was competent to adduce proof of guilt, not only since the day designated in the indictment, and for six months before the indictment was brought, hut for any time previously, within the statutory limit for prosecuting this offence.

And this is, after all, to the advantagex of the defendant; for if he should be indicted thereafter, for playing and betting with cards, at any of the games enumerated in the indictment? at any time within two years before the bill of indictment was ■found, the record would be aprima facie protection, at least, against a conviction.

Wherefore, the judgment must be affirmed.