Howard v. State , 83 Miss. 378 ( 1903 )

Whitfield, O. J.,

delivered the opinion of the court.

We think it clear that there was a motion made to compel the district attorney to elect as to which offenses and against what parties he would proceed. The failure of the court to do this is also made one of the grounds of the motion for a new trial. It is also clear that some of the defendants offered to file proper pleas of former conviction. This the court refused to allow to be done. It is true that this action of the court is not made the ground of the motion for a new trial, but, as the cause must be reversed, -it is proper to say that the court ought to have allowed the pleas to have been filed.

The instruction marked 4 1-2 for the defendants is as follows: “The court charges the jury that in determining the interest a witness has in the case they are at liberty to consider the fact, if the proof shows it, that such witness is under indictment for gambling, and that, if he testifies in behalf of the state, he is thereby discharged from liability to fine or punishment on account of such violation of the law. The jury has the right to look to this fact, if shown, by the testimony, in determining wbat weight, if any, they will give to his testimony.” This instruction the court refused to give. In view of the provisions of § 1432 of the code of 1892 and of the testimony in the case, the refusal of this charge was fatal error. That section is as follows : “Every witness, when summoned, shall appear and give evidence of all offenses against the provisions of law as to gambling or gaming of which he shall have any knowledge; and a witness, so summoned and giving evidence without procurement or contrivance on his part, shall be thereafter exempt from criminal prosecution for such offense in relation to which he shall have so testified in good faith.”

The testimony shows that some of these witnesses were code-fendants in this same indictment, and that they testified in good faith for the state in reference to the very offenses embraced in this indictment. There are two conditions of immunity provided by said section: First, that such witnesses must have been summoned by the state, and must have given evidence without procurement or contrivance on their part and in good faith; second, their exemption is exemption from prosecution for the very offense in relation to which they shall have so testified. But this immunity is a matter between them and the state. It is not necessary that the charge for the other defendants shall set out the conditions of this immunity. It is enough for the charge in this respect to state that they had obtained such immunity, and this the charge does.

But there is a more serious error still to be noted. Section 1431 of the code of 1892 provides: “On the trial of all indictments for gambling or gaming, the state shall not be confined in the proof to a single violation, but under the indictment charging a single offense may give in evidence any one or more offenses of the same character committed anterior to the day 'laid in the indictment and not barred by the statute of limitations; but in such case, after conviction or acquittal on the merits, the accused shall not be again liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment.” Under this section it is proper for an indictment to charge any single defendant with the commission of “any one or more offenses of the same character” committed within the statutory period anterior to the day laid in the indictment; second, it is also competent- under this statute for the indictment to charge any number of defendants with the joint commission of any one. or more offenses of the same character as therein stated. But it is not competent, nor was it ever the purpose of the legislature, to permit under this statute an indictment to charge any number of separate and distinct individuals with the commission of separate and distinct- offenses under the gambling law, wholly disconnected in time and place each from the other. If the opposite contention were sound, it would be proper for an indictment under this section to charge fifty men in each of the five supervisor’s districts of a county — two hundred and fifty men in all— with tlie commission of ten thousand separate acts of gambling, although each and every act of gambling should be, as to time and place, wholly distinct from each and every other act of gambling. The law never contemplated any such boundless confusion, and the case of Lea v. State, 64 Miss., 294, 1 South., 244, and Strawhern v. State, 37 Miss., 422, properly understood, do not support such contention. It is to be especially noted that in neither one of these cases was there any demurrer to the indictment, nor was there any motion to quash the indictment on this special -'ground which we are considering; and, further, it is to be specially noted that the court in both these cases specially pointed ¡out that “the legality and sufficiency of the indictment” in this respect was not presented for decision. And it is further to be noted that in the case of Lea v. State it is expressly, indicated that, if objection had been properly taken to the indictment on the ground that it permitted the “joinder of charges for separate and distinct offenses against separate and distinct individuals,” the indictment would have been quashed. In the Strawhern case the language of the court at page 428 upon tbe first and second propositions shows clearly that it was dealing with the question of inserting several distinct felonies or misdemeanors of the same degree in the same indictment against the same offenders. The indictment there contained two counts. The first count was an indictment for playing at tenpins, the second count was for playing at pool; and the motion to quash in that case was on the sole ground that the indictment charged two distinct offenses against the same defendant — a wholly distinct ground from the one we are considering. So the motion to compel the district attorney to elect and to compel him to proceed upon the charge of either playing the game of tenpins or of pool was on that ground alone. This falls very far short of presenting the objection here under review. In Strawhern’s case the third exception had been disposed of on the ground that the witness was competent because he had no interest, and all that is stated as the additional reason Avhy he should have been permitted to testify is pure dictum. The dictum contained a discussion as to whether the indictment charged four persons with the joint commission of the offense, and the court stated that the circuit judge had adopted the construction of the indictment which would make it a charge that each of the defendants was “severally” charged with the commission of separate and distinct misdemeanors. And the court in the Lea case (very unnecessarily, as we think), treated the Lea case and the Strawhern case as identical. It is true that in the Strawhern case the point for consideration (similar to the one here) was whether the second charge for the defendants was properly refused, and the court held that, since no objection had been taken to the indictment, and the circuit judge had adopted the construction indicated, there was no error in the refusal. But the curious fact remains that the first instruction for the state in the Lea case most manifestly shows that the district attorney asked it, and. the court gave it, on the view that the indictment — identical with the indictment in the Strawhern case — did charge the joint commission of the same character of offenses by Becky Lea with some other persons. In both clauses of said instruction the word “with” is used. In the first clause.it is said that if the jury believed Becky Lea played “with” the other three; in the second clause it is said that if the jury believed Becky Lea played “with” any one else. Tet the court, in its opinion, said it felt ■ constrained by the Strawhern case, in which no such instruction is shown, and in which, on the contrary, this court expressly stated that the circuit court had proceeded not upon the theory that the defendants had played with anybody else, but that each defendant had severally played at a particular game. It must also be carefully noted that in both cases, however, this court stressed specially the fact that no objection was taken to the indictment by the demurrer or motion to quash, on the precise ground we are reviewing. Certainly this statute must be construed remedially, and not penally for the suppression of gambling; but just as certainly an indictment under it must not infringe the constitutional right of the defendant to be precisely informed of the nature and cause of the accusation against him. It is true, § 1431, Code 1892, permits the state to show in evidence any one or more offenses of the same character committed within the period of the statute of limitations; but the last clause of that section, recognizing the unusual liberty thus granted the state, expressly provides that in such case, “after conviction, the accused shall not again be liable to prosecution for any offense committed anterior to the day laid in the indictment.” This shows the cautious regard the legislature had for this constitutional right of the defendant, lest too broad a liberty might be given the state. The verbiage of that statute further indicates that it is dealing with either a single accused person or with a number of accused persons jointly committing offenses against the gambling laws. From all which considerations it must be perfectly clear that no such indictment as this can be allowed. If an illustration of the utter impropriety of such an indictment is needed, it is furnished by the chaos presented by this record. Here are nineteen persons indicted in one and the same indictment, and under this indictment evidence was introduced, over the objection of defendants, of a multitude of offenses against the gambling laws, committed not jointly, but severally by each of the defendants, at various times and places within the period of the statute of limitations. Evidence was allowed to go to the jury over the objection of defendants of games played by different groups and sets of the defendants at wholly different and distinct times and places for the period named, without there being the slightest connection shown between the games played at one time and place and the games played at various other times and places, or between the separate groups of players at different times and places. The court even allowed the state to show in its testimony games played singly by each separate person at times and places wholly distinct from games separately played by each of the other persons at wholly distinct and separate times and places. The law is not the “author of confusion.”

We will construe § 1431, Code 1892, with the greatest liberality permissible and consistent with the defendants’ constitutional right above indicated. But to sustain this indictment would not only abolish this right, but introduce a system of criminal pleading wholly at war with clearness, order, and justice. This indictment upon the return of the cause into the circuit court should be dismissed, and the defendants held to answer proper indictments.

Reversed and remanded.