Hubbard v. State

¶1concurring specially. While I concur in the judgment rendered, I can not agree to the proposition, stated in the second headnote and announced in the opinion, that where an indictment for the offense of gaming charged the accused with playing “ at a game played with cards, dice, and balls,” evidence that he played a game with cards only authorized a conviction. The charge was that the offense was committed in a particular way, that is, “ at a game played with cards, dice and balls.” The descriptive averments of the maimer in which the game was played were essential elements of the particular offense ■ charged, and, according to the well-settled rule of pleading, should have been proved as laid. In Woody v. State, 113 Ga. 927, the exact point here involved was distinctly ruled. In that case the indictment was for gaming, and charged the accused with playing and betting at divers games “ played with cards and dice.” It was held that a conviction was not warranted, when there was no evidence that the accused played and bet at a game played with both cards and dice. It is true that it was held that the verdict was not warranted, for another reason, but the decision was distinctly put on both grounds. In my opinion, the ruling in that case was not at all in conflict with any of the previous rulings of this court, nor with the principle stated by Bishop, cited in the opinion of the majority in the present case. Of the cases decided by this court, cited to support the decision now rendered, Wingard v. State, 13 Ga. 396, and Eaves v. State, 113 Ga. 749, seem more nearly in point than the others. In Wingard’s- case, the indictment charged that the accused played and bet with cards for money, “ at a game of poker, whist, faro, seven up, three up, and other games played with cards. ” The words, “ poker, whist, faro,” etc., were each descriptive of a separate and particular game, and especially so when •used in connection with the expression, “ and other games played with cards. ” ’ That each of these words' was descriptive of a distinct and separate game was shown, by the statute itself under which the accused was indicted, which enacted that “if any person shall play and bet for money, “ or any other things of value, at any game of faro, loo, brag, ” etc., “ or any other game or games played with cards,” he shall, on conviction, be fined, etc. In the Eavescase it was held that where an indictment charged the accused with unlawfully selling “ spirituous, vinous, and malt liquors,” *20proof that he unlawfully sold any one of such liquors would support a conviction. If the indictment in that case had charged the unlawful sale of a given quantity of spirituous, vinous, and malt liquor, and the proof had shown the unlawful sale of a given quantity of malt liquor alone, I apprehend that a conviction would not have been sustained; yet such a case would have been more like the one in hand than the real case there made. As I understand the ruling in that case, it was that the indictment charged the accused with unlawfully selling spirituous liquor, vinous liquor, and malt liquor; that is, that he was charged with unlawfully selling all three kinds of liquor, and, therefore, proof that he unlawfully sold any one of them was sufficient to sustain a conviction. If a merchant were to advertise to sell woolen, linen, and cotton goods, I think it would be generally understood that he offered to sell three kinds of goods, to wit, woolen goods, linen goods, and cotton goods. But if he were to advertise to sell cloth made of, or “ with, ” wool, flax, and cotton, I think it would be well understood that he proposed to sell a particular kind of cloth composed of all three of these materials. If the indictment in the present case had Charged that the accused played and bet at a game played with cards, a game played with dice, and a game played with balls, proof that he played at a game in which cards alone, or dice alone, or balls only were used would sustain a conviction ; but “ a game played with cards, dice, and balls ” is a different thing from a game played with cards only, dice only, or balls alone. The Eavescase was decided on July 18, 1901, and the Woodycase on July 20,1901. It would be rather singular if only two days after the ruling was made in the Eavescase, this court had, in the Woodycase, rendered a decision in conflict therewith. But, as said above, I do nob think there is any conflict between the two.