Gaines v. State

DAVIDSON, Presiding Judge.

Appellant was convicted of gaming. The State’s case was fully made out by the evidence. Appellant relied upon an agreement with the county attorney by which he was to be exonerated from punishment. The facts in this connection show that appellant made an agreement with the county attorney by which he was to induce other parties to engage in gaming, or participate in games with anyone who would play, report them to the county attorney, and be used as a witness for the prosecution in such cases. He further alleges that he engaged in two or more games, and stood ready to testify against these parties, and so informed the county attorney. The county attorney did not see proper to use him but prosecuted him for engaging in the games. His contention is that these relations exempted him from punishment; and he raises the question by special plea, and by charge asked of the court. The question urged is fully presented. Whenever a party is used by the State as a witness in gaming eases, he is released by the statute from punishment in the case in which he testifies or is used, whether that testimony is given berore the grand jury, trial court, or examining court. But so far as we are advised this only relates to cases where the offense has been committed and one of the participants is used as a witness. We have found no case, and we are cited to none, which is based upon a previous agreement to engage in violations of the law for the purpose of playing detective, or in bringing about violations of the law in order that he may testify. We do not believe the statute was intended to cover such cases. Nor can an agreement or conspiracy of this sort, entered into between the county attorney and one or more parties, be brought within the terms of the statute. The law did not contemplate the giving of its sanction, either directly or inferentially, to conspiracies or agreements of this sort. The county -attorney and- the witness can not enter into agreements to bring about violations of the law,- and the witness claim by force of this agreement the benefit of exemption. The county attorney did not see proper to use him as a witness. The county attorney by reason of Ms official position has no right to induce parties to commit crime; and neither he nor the party engaged in the crime by virtue of this agreement would be exempt from punishment. The officer has no more exemption under such circumstances than the parties to the game. The county attorney might use the witness, under the terms of our statute, and exonerate him; but that does not grow out of the mere fact of the'previous agreement. The-law does'not recognize the right of the county attorney, or other parties, to 'enter into agreements to bring about violations of the law for the purpose of securitLg convictions. We know of no authority upon which appellant can predicate the defense set up. Therefore, the court did not err in excluding the evidence, and in refusing to instruct the jury to acquit under these circumstances.

There is another question raised. The complaint charges' “"Bill (or W. H.) Gaines” with a violation of the law. The information charges that “W. H. -Gaines” violated the law. We believe the complaint and information taken together are-sufficient, and the complaint is not subject to the criticism that it is in the alternative; that is, one or the other, either Bill or W. H. Gaines. We have been cited no authority so holding. There are such cases where-the offense is charged in the alternative, as “carrying on or about his person a pistol.” But we have found no case holding this role applies to the name of the indicted party. The judgment is affirmed.

Affirmed. •