State v. Mathis

Dickinson, Judge,

delivered the opinion of the court:

The defendant insists that, if one' count is'bad, the objection is good to the residue. We are by no means prepared to admit the correctness of this position; for it is clear, to our minds, that if one count in the indictment be good, although the other may be defective, it will be sufficient to support a general verdict of guilty. 1 J. R. 320. Archbold's Cr. Pl. 61, says that, indictments for misdemeanors may contain several counts for different offences, provided the judgment for each be the same. ‘ _

The power of the court to quash indictments, is discretionary. They may do it immediately, or oblige the defendant to plead or demur as they may think bests In the exercise of this discretion, they are guided by certain rules; and when the motion comes from the defendant, they are more strict than if the application is made by the prosecution; because, if the indictment is quashed, the" recognizance is ineffectual; and it might be doubtful about a good indictment being found in time. This rule is more strictly applicable to the higher offences when the ground is clear and plain, but it is presented in full force on an indictment when there are several counts, some of which are good, and upon which judgment could be given on a general verdict. It is frequently advisable, when the evidence will not support the whole charge, to insert several counts, for the prisoner may be found guilty of a part, and acquitted of the residue. If this be so, and we presume it will not be controverted, it follows, that if one count is good, and is sustained by evidence, judgment can be legally given upon it. Nor can a grand jury separate the parts of an indictment, but must either find a true bill or throw out the whole.

In 1 Chit. Crim., Law, 167, 8 and 9, and in authorities there cited, it is expressly laid down, “ that a defect in some of the counts of an indictment will not affect the validity of the remainder, for judgment may be given against the defendant for those which are valid.” in civil actions, the rale is different, because, if one part of the declaration is ill, and the jury find entire damages, the judgment must be arrested; and the reason of this distinction is, that in the latter case the jury find entire damages, and the court cannot apportion them, whereas, in the former, the court themselves regulate the severity of the sentence, and can do so according to their discretion upon those parts of the indictment that are supported. 1 Salk. 386.

We consider the question as regards the right of the court to try the defendant in case there is one good count, as well settled. Each separate count should charge the defendant, as if he had committed a distinct offence, because, it is upon the principle of the joinder of of-fences that the joinder of counts is admitted.

We will now proceed lo test the correctness of the decision of the court below, by the rules here laid down. The first section of the law prohibiting gaming; Rev. Stat. 273, declares that “every person who shall set up, keep, or exhibit any gaming table or gambling device, commonly called A. B. C., E. O., roulette, rouge et noir, or any faro bank, or any other gambling table or gambling device, or bank of the like or similar kind, or of any other description, although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing any game of chance, or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor;” and the 4th section of the same act declares, that if any owner or occupant of any house, outhouse, or other building, or any steamboat or other vessel, shall, knowingly, permit or suffer any of the before mentioned games, tables or banks, or shall suffer any kind of gaming, under anj' name whatsoever, to be carried on or exhibited in their houses, or out-houses, or other buildings, or on board of any steamboat, fiatboat, keelboat, or other vessel, on any of the waters within this State, on conviction thereof, every such owner or occupant shall be punished, as is provided in the first section of this title.” It is under these sections, as necessarily connected, that the first count is found. Wc have given the subject the most mature deliberation, and come to what we think the only correct conclusion; that this count is sufficiently express in its language, and certain as to the character of the offence. He is charged with “ permitting and suffering divers evil-disposed persons to exhibit, caray on, and play upon a certain unlawful gaming table called a faro bank, in his grocery store.” And that such grocery store was kept in some such building or boat, mentioned in the statute, there can be no doubt, and is, in our opinion, sufficiently explicit. Nor can we see any serious objection to the other counts, certainly none sufficient to authorize the court to quash the indictment. Upon the whole, it is clear that the several offences, as charged, are within the letter and spirit of the statute.

The language used in the act against gaming, although not possessing great legal accuracy and precision, is nevertheless sufficiently explicit and comprehensive to include every species of gaming, be the name or denomination what it may, if adapted, devised or designed for the purpose of playing any game of chance at cards, or at which any money or property may be won or lost, and it is upon the rigid and faithful enforcement of the law, that much of the peace and good order of civil society depends.

The due and faithful administration of public justice by all the officers who are charged with this duty, would prevent much of the demoralizing influence that springs from this illegal and pernicious practice. That the Circuit Court of Chicot erred in quashing the indictment, we have no doubt. The indictment contains all the essential requisites that are necessary to charge the defendant.

The judgment of the Circuit Court must, therefore,, be reversed.