Opinion
No. 32159.
November 16, 1936.
1. INDICTMENT AND INFORMATION.
Indictment charging that defendants were interested in loss or gain of gambling table held not demurrable as charging more than one offense in one count by referring to "games of chance," since offense charged did not end by playing of one game, but was continuous (Code 1930, section 962).
2. CRIMINAL LAW.
Supreme Court would not interfere with trial court's discretion in overruling motion for severance made by seven defendants charged with being interested in gambling table (Code 1930, sections 962, 1272).
3. CRIMINAL LAW.
In prosecution of seven defendants for being interested in gambling table, evidence as to gaming on occasions subsequent to first occasion admitted when all defendants but one participated in furtherance of game held not admissible, where evidence as to subsequent occasions disclosed separate offenses in commission of which some of the defendants did not participate (Code 1930, sections 962, 1285).
4. GAMING.
In prosecution of seven defendants for being interested in gambling table, evidence held insufficient to sustain conviction as to defendant who played on table, but as to whom evidence contained nothing to indicate that he was at any time interested in loss or gain of table (Code 1930, section 962).
APPEAL from circuit court of Pike county. HON. J.F. GUYNES, Judge.
F.D. Hewitt, Justin J. Cassidy, Junior O'Mara and Williams Hunt, all of McComb, for appellants.
We realize that section 1272 of the Mississippi Code of 1930 leaves the granting of severances to defendants who have been jointly indicted for misdemeanors entirely in the discretion of the court. We are further familiar with Stewart v. State, 2 So. 73, 64 Miss. 626, wherein it is held that the granting of severance to defendants jointly indicted for a misdemeanor is a matter in the discretion of the court. We are further familiar with other decisions of this and other courts holding the above statement to be the correct law, however, there is to the effect in the opinion of the court in Stewart v. State, supra, that if a court abuses its discretion in refusing to grant an application for a severance in a case then this will be held error.
We respectfully submit to this honorable court that the overruling of the application for a severance in this cause in the court below was manifestly an abuse of the court's discretion.
There can be no doubt under the facts in the case at bar but what the trying of all of the defendants in the court below jointly and under one indictment was highly prejudicial to appellants or defendants below in their defense.
Defendants who merely commit similar crimes and not the same crime cannot as a rule be joined in the same indictment.
16 C.J. 354; 14 R.C.L. 194; Clue v. State, 78 Miss. 661, 29 So. 516.
The state must charge one offense and not many. The defendant is only called on to meet one charge when the indictment contains but one count, and this charge must be definite and unambiguous.
Montgomery v. State, 107 Miss. 518, 65 So. 572; Townsend v. State, 137 Ala. 91, 34 So. 382.
We call the court's attention to this fact that in the case at bar no witness for the state testified that each and every one of the appellants or defendants in the case at bar were present committing the offenses charged against them at any one time.
Howard v. State, 83 Miss. 378, 35 So. 653; Wheeler v. State, 76 Miss. 265, 24 So. 310.
The proposition in regard to the proof necessary to be produced by the state before appellants can be convicted under the indictment is that it is necessary for the state of Mississippi to prove beyond a reasonable doubt that the appellants or defendants in the court below not only furnished articles with which to carry on this game of chance, if any articles were furnished by anyone and if any game of chance was carried on, but it is also incumbent upon the state to prove that appellants or defendants in the court below were interested in the loss or gain of said table. This the state failed to do. The entire record in this case is wholly bare upon this question. Not a single witness who testified for the state attempted to say that any of the defendants in the court below were interested in the loss or gain of the table.
Brazele v. State, 86 Miss. 286, 38 So. 314; Jones v. State, 80 Miss. 181, 31 So. 581; Rawls v. State, 70 Miss. 739, 12 So. 584.
The court's attention is called to the wording of the indictment, reading: "A table on which games of chance were then and there played," thus charging seven different persons with playing more than one game in one count of the indictment.
Under section 26 of the Constitution of this state, the defendants were entitled to be advised of the nature and cause of the accusation against them.
Montgomery v. State, 107 Miss. 518; Howard v. State, 83 Miss. 378, 35 So. 653.
The jury panel should have been quashed.
Morrison v. State, 124 So. 362; Cook v. State, 90 Miss. 137, 43 So. 618; Rhodman v. State, 120 So. 201.
The motion for a severance and motion to require the state to elect and the objections to testimony of second and succeeding offenses, should have been sustained.
Section 1272, Code of 1930.
Evidence of more than one offense of the kind charged is not admissible under the statute.
Section 1285, Code of 1930; Lowe v. State, 127 Miss. 340, 90 So. 78; Howard v. State, 83 Miss. 378.
The evidence shows that different ones of the defendants were present at the different times while the dice game was going on but does not show that all of them were present at all of the games and McCarlie testified about a game in another place than the one in which Calhoun and others testified about and other witnesses testified about a dice game at indefinite times and long before and perhaps after the indictment in this case was found, making six different games at two different places.
We respectfully submit that after all of these matters were before the court the motion to require the state to elect which offense testified about it would rely upon for a conviction, should surely have been sustained.
King v. State, 99 Miss. 23, 54 So. 657.
The proof must show that defendants furnished articles, and were interested in the loss or gain of the table.
Crawford v. State, 133 Miss. 147, 97 So. 534; Parkinson v. State, 145 Miss. 237, 110 So. 513. Webb M. Mize, Assistant Attorney-General, for the state.
The record shows that the application for a severance was made after the defendants had been arraigned. In a felony case a defendant is entitled to a severance if application is made before arraignment. In a misdemeanor case persons jointly indicted may be either tried jointly or separately, the matter being left in the discretion of the court.
Sections 1271 and 1272, Code of 1930; Stewart v. State, 64 Miss. 626; Goffredo v. State, 145 Miss. 66, 111 So. 131.
This indictment showed that all defendants were jointly interested in the gambling table. The Howard case, 83 Miss. 378, has reference to a situation where a number of defendants are indicted for gambling, but where the gambling was done in different places and the Howard case throws no light here for the further reason that the defendants there were shooting craps and the joint ownership of a gambling establishment was not charged.
Ross v. State, 135 Miss. 862, 101 So. 289.
All jury laws are directory only.
Section 2064, Code of 1930.
There is no hint anywhere in the record and no complaint that the jury was unfair, biased or prejudiced.
Harris v. State, 155 Miss. 794, 125 So. 253; Bruce v. State, 169 Miss. 355, 152 So. 490.
Argued orally by Junior O'Mara and F.D. Hewitt, for appellant.
The appellants were convicted of violating section 962, Code 1930. The indictment charges that the appellants, seven in number, "on or about the seventh day of October, A.D. 1935, did then and there wilfully and unlawfully become and was interested in a gambling table, to-wit; a table on which games of chance were then and there played and carried on with dice for money by then and there wilfully and unlawfully furnishing money and articles for the purpose of carrying on the same, being then and there interested in the loss or gain of said table."
A demurrer to this indictment, on the ground that it charges the commission of more than one offense in one count, was overruled. As we understand the appellants' contention, it is based upon the words, "games of chance," by which they say the indictment charges "seven different persons, in one count, with playing more than one game." The indictment is not for playing at a gambling game, but for being interested in the loss or gain of a gambling table, which interest is not ended by the playing of one game, but is continuous. The indictment charges only one offense.
A motion by the defendants for a severance was overruled, and the discretion of the court below in so doing will not be here interfered with under section 1272, Code 1930.
In order to prove the allegations of the indictment, the state introduced evidence disclosing that a game of chance was being played in a room on a table. The game was played with dice, the players purchasing chips from a person acting as banker, and the player would either win or lose on a throw of the dice. If he lost, the banker took the chips the player had purchased and retained the money paid therefor.
A witness testified that he was in the room on one occasion, and participated in the game then going on; all of the appellants were present, and, except John Battaglio, participated in some way in the furtherance of the game, that is, were doing various things necessary to enable the participants therein to play the game, one of them acting as doorkeeper. John Battaglio was playing, but was not seen to do anything indicating that he was interested in the operation of the table. Over the objection of the appellants, this witness and others testified to being present on other occasions when games of chance were being played, but each time some of the appellants were not present, and some of them who were present were not shown to be doing anything in furtherance of the game. John Battaglio was, at no time, shown to have been so doing.
The only argument advanced by the appellee in support of the admission of this evidence is that it was admissible under section 1285, Code 1930, which provides that, "On the trial of all indictments for gambling or gaming or operating a bucket-shop or dealing in contracts commonly called `futures,' 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."
We will assume, for the purpose of the argument, that this statute applies in cases where several are jointly indicted for gaming, provided all of them are shown to have participated in each game of which evidence is offered. But such is not the case here.
The only evidence as to the appellants' interest in the loss or gain on the table was what they did on each occasion, and, so far as the evidence discloses, they were not interested therein except when actively participating in the furtherance of the game then being played thereon. The evidence as to gaming, on occasions subsequent to the first here admitted in evidence, seems to disclose separate and distinct offenses in the commission of which some of the appellants did not participate, consequently it was not admissible under section 1285, Code 1930; Howard v. State, 83 Miss. 378, 35 So. 653.
As to Battaglio, the evidence contains nothing to indicate that he was, at any time, interested in the loss or gain of the table, and consequently his request for a directed verdict of not guilty should have been granted.
The judgment will be reversed as to all the appellants and the cause remanded as to all except Battaglio, who will be here discharged.
So ordered.