Hewitt v. State ( 1931 )

R. W. Hewitt, Fred Browning, and Wallace Foreman, hereinafter called defendants, were convicted in the district court of Creek county of conducting a gambling game and were each sentenced to pay a fine of $500 and to serve a term of one year in the state penitentiary. Fifteen defendants were jointly charged in the information. Only the three named were tried in this case.

The record discloses that at the time charged defendants with others were in the possession of a large building near the town of Oakhurst. This building was surrounded by a high wire fence. Within it was conducted a restaurant and cabaret with orchestra. Off from the dining room was what may be termed the gambling room, in which there were two crap tables, two roulette wheels, chuck-a-luck table, black jack table, money racks, chairs, cashier's cage, dice, cards, chips, a bird cage for chuck-a-luck — the usual equipment for the old time gambling house. Photographs are in the record. At the time charged defendants had or had caused this equipment to be set up and were operating the gambling house. Some 60 persons were engaged in gambling when the officers entered. Defendants did not take the stand and offered no testimony.

Complaint is made that the information is duplicitous. The material allegations are:

"That they, the said R. W. Hewitt, Fred Browning and Wallace Foreman * * * did then and there unlawfully, wilfully and feloniously, open, conduct and carry on and cause to be opened, conducted and carried on in a certain house called and known as Beau Monde Club, situated and being * * * within the county of Creek, State of Oklahoma, and by them occupied and of which they had control and did then and there permit and cause to be set up and used for the purposes of gambling, certain tables, apparatus and devices, to wit:

"Roulette wheels, crap tables, poker tables, black jack tables, chuck-a-luck and divers other gambling devices, at which banking and percentage games were played with cards, dice, and wheel and ball for chips, money, credits and other representatives of value and were conducted by the said R. W. Hewitt, Fred Browning and Wallace Foreman. * * *"

Defendants assert this information charges both the misdemeanor defined by section 1926, and the felony defined by section 1938, Comp. Stat. 1921. These sections are:

"1926. Any person who shall permit any gaming table, bank, or gaming device prohibited by this article, to be set up or used for the purpose of gambling in any house, building, shed, shelter, booth, lot or other premises to him belonging, or by him occupied, or of which he has, at the time, possession or control, shall be, on conviction thereof, adjudged guilty of a misdemeanor, and punished by a fine not exceeding $200, nor less than $100, or by imprisonment in the county jail for a term not exceeding six months nor less than 30 days, or by both such fine and imprisonment in the discretion of the court."

"1938. Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or percentage, or any gambling game played with dice, cards or any device, for money, checks, credits, or any representatives of value, or who either as owner or employee, whether for hire or not, deals for those engaged in any such game, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine of not less than $500, nor more than $2,000, and by imprisonment in the state penitentiary for a term of not less than one year nor more than ten years."

It will be seen that section 1938 is directed against the person who opens, causes to be opened, conducts or deals the prohibited games. It denounces the opening, causing to be opened, conducting, or dealing such games as a felony. This statute is directed against one who actively does these prohibited things. Section 1926 is not directed against the person who actively does the things prohibited by section 1938, but against the person who permits another to use his property or property in his control for such purpose. If he does or causes to be done the prohibited act, he is guilty of a felony. If he permits another to use his property for the prohibited use, he is guilty of a misdemeanor. Moore v. State,9 Okla. Cr. 9, 130 P. 517. Inspecting and analyzing the allegations to determine just what charge is made, it is evident the pleader is attempting to charge the, active doing by defendants of the things forbidden by section 1938, and not the permitting of another to do them as prohibited by section 1926. Stripped of descriptive and formal matter, the information charges that defendants did "open, conduct, carry on and cause to be opened, conducted and carried on, the Beau Monde Club by them occupied and of which they had control, and did (permit and) cause to be set up and used for the purpose of gambling certain tables, etc." The words "by them occupied and of which they had control" are not used in section 1938, but is a proper allegation in charging the offense defined by that section. The word "permit" is a departure from the terms of section 1938, and is in section 1926; if it were controlling or used alone with the allegations following it, defendants' contention would be of much more force, but it is coupled with the word "cause," i. e., "permit and cause to be set up," etc. The mere throwing in of the word "permit" does not bring the charge under section 1926; it is a surplusage. In Reed v. State, 17 Okla. Cr. 662, 191 P. 1041, a conviction for felony under section 1938 was affirmed. The information there was in practically the same words as in the instant case. The objection of duplicity of the information was not made in the Reed Case. The information here is not misleading and the, trial court properly held it charged the felony defined by section 1938.

It is argued the search warrant is invalid and the evidence obtained thereby inadmissible for the reason the affidavit or complaint for the search warrant does not state that the personal property described is "concealed" nor name or describe the person to be searched.

The search warrant is issued under the general provisions of chapter 7, art. 19, Comp. Stat. 1921. Section 7009, Comp. Stat. 1921, pertaining to search warrants under the prohibitory liquor law, has no application. The affidavit or complaint is in positive terms and states that gambling paraphernalia, to wit, "roulette wheels, dice, crap tables, black jack tables and chips, are being kept and used for gambling in the described premises." Affiant then sets out the source of his knowledge and states the place is a public resort where persons gather and congregate for the purpose of gambling. The warrant directs the search of the house and the seizure of the described gambling paraphernalia, if found therein. Sections 2877, 2878, and 2879, Comp. Stat. 1921, state the grounds on which a general search warrant may issue. These sections are:

"2877. It may be issued upon either of the following grounds:

"First. When the property was stolen or embezzled, in which case it may be taken on the warrant, from any house or other place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or of any other person in whose possession it may be.

"Second. When it was used as the means of committing a felony, in which case it may be taken on the warrant from any house or other place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offense, or of any other person in whose possession it may be.

"Third. When it is in the possession of any person, with the intent to use it as the means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered, in which case it may be taken on the warrant from such person, or from a house or other place occupied by him, or under his control, or from the possession of the person to whom he may have so delivered it.

"2878. A search warrant shall not be issued except upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.

"2879. The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist."

Defendants contend that under these sections a search warrant can only issue, first, to search a person in possession of contraband, or, second, to search a place in which the property sought is concealed; that the search warrant is invalid because the affidavit or complaint does not name or describe any person to be searched, and it is not alleged nor claimed that the property is concealed but, on the contrary, was in a place of public resort.

The first subdivision of section 2877, supra, applies to property stolen or embezzled only. The second subdivision, for the taking of property from the possession of the person by whom it was used in the commission of an offense or of any other person in whose possession it may be, is broad enough to authorize the seizing of gambling paraphernalia being used as shown by the record in this case. It did not require a search of the person of any one to discover this gambling paraphernalia, and it was not necessary that the warrant direct a search of any person. The third subdivision, for the seizing by search warrant of property in the possession of any person with intent to use it as a means to commit a public offense, is also broad enough to authorize a seizing of property of this kind when being used for gambling.

Under this assignment it is also urged the search was unlawful because the affidavit or complaint did not conclude, "against the peace and dignity of the state," as required by section 19, art. 7, state Constitution, citing several cases, none of which are applicable to an affidavit or complaint for search warrant.

Section 2879, supra, refers to the affidavit for search warrant as a complaint. It is, however, a mere showing by affidavit in the nature of testimony to make to the magistrate a prima facie showing of probable cause. The indictment, information, or complaint meant by section 19, art. 7, of the Constitution, are the formal pleadings under which a person is charged with an offense. It does not include the complaint or affidavit to procure a search warrant.

It is also argued the search warrant is void because directed to and served by Sam B. Turner, superintendent of the Bureau of Criminal Identification, and not by an officer named by the statute. Sections 2880, 2882, Comp. Stat. 1921. The warrant is directed to:

"Any sheriff, constable, marshal or policeman, or Sam B. Turner, Supt. of Okla. State Bureau of Criminal Identification and Investigation, in the county of Creek."

By chapter 127, Session Laws 1925, the superintendent of the Bureau of Criminal Identification is made a peace officer and is given the power of sheriffs, constables, and municipal officers except in the service of civil process. The search warrant having been directed to him jointly with the other officers named, the holding of this court in the case of Dunn v. State, 40 Okla. Cr. 76, 267 P. 279, and Key v. State,43 Okla. Cr. 450, 279 P. 931, is not in point. The superintendent having the power of a peace officer and the search warrant being jointly directed to him, service by him is valid.

Upon a consideration of the whole record, no material error is made to appear.

The case is affirmed.

CHAPPELL, J., concurs.