Covy v. State

¶1— This was an indictment in the Circuit Court of Tuskaloosa county, against Co-yy and Cabiness, under the gaming acts.

¶2There are three counts in the indictment. The first charges them with “ knowingly permitting and suffering a Faro Bank for gaming, to be carried on and exhibited in a house occupied by them.”

¶3The second count charges them with “ knowingly permitting and suffering to be carried on and exhibited in their house, a Faro Bank for gaming.”

¶4The third count charges them with “knowingly permitting and suffering a Roulette Table, kept for gaming, to be carried on and exhibited in a building occupied by them.”

¶5They are charged in all three counts jointly, and the offence is laid, “at--in the county of Tuskaloosa.”

¶6There was a general demurrer to this indictment, which was overruled, and the point reserved for the consideration of this Court.

¶7' The .defendants then pleaded separately, and asked leave to sever in their defence, which was refused. They were then tried, and Cabiness was found not guilty; Covy was found guilty on the two first counts, and not guilty on the third, and a fine of one hundred dollars was assessed by the jury.

¶8The defendant then moved an arrest of judgment, which was overruled, and the point reserved for the consideration of this Court, as novel and difficult.

¶9The defendant has made the following points upon the questions referred to this- Court—

¶101. That the act of eighteen hundred and twelve, under which this indictment was framed, was re*189pealed by the act of eighteen hundred and twenty-six, on the same subject.

¶112. That the indictment is uncertain in not stating the place where the house, in which the offence is charged to have been committed, is situated.

¶123. That the indictment is double, the third count charging a separate and distinct offence from the first and second , and

¶134. That the defendants should have been charged separately, as well as jointly.

¶141. There can be no doubt, that notwithstanding the act which establishes the Digest of the statute laws, made by Mr. Aikin, if there are laws in that book, which come in conflict with each other, the latter law must repeal the former. The rules of construction in this particular, must apply; and if it be true, that the act of eighteen hundred and twelve is repealed by the act of eighteen hundred and twenty-six, and this indictment is founded upon the act of eighteen hundred and twelve, the demurrer should have been sustained.

¶15By the act of eighteen hundred and twelve, the offences described in this indictment are prohibited from being carried on in any “ house, out house, or other building,” of any person, or persons. By the act of eighteen hundred and twenty-six, the same of-fences are prohibited from being carried on, “ on the premises'1 of any person, or persons. The penalty under the act of eighteen hundred and twelve, is to be not less than one hundred dollars, nor over two thousand dollars, and standing in the pillory one hour on three successive days. In the latter, it is to be not less than five hundred dollars, nor more than two *190thousand dollars, and imprisonment not less than two, nor more than twelve months.

¶16It is evident, from this state of the case, that if the indictment can be sustained under the act of eighteen hundred and twenty-six, the question of the conflict of these two acts, does not arise. In the latter act, the word premises is used, instead of the words, house, out house, or other building — a word more comprehensive in its meaning, and which includes all the other words ; for there can be no doubt that a man’s premises may include his house.

¶17The difference in the penalty can have no bearing upon the question arising upon the demurrer. The inquiry then properly arises, under the second point raised, whether the allegation, that the offence was committed in the county of Tuskaloosa, “in the house occupied by the defendants,” as in the first and third counts, or “ in their house,” as in the second count, is a sufficient description of the premises, under the statute.

¶18In the case of J. Anson vs Stewart*— Mr. Justice Buller remarked, that in the indictments for keeping a bawdy house, the “ indictment must state the place where the house is situate, and the time“ for the offence is the keeping of the house.” Under the authority of this decision, it is contended that this indictment is insufficient; that the place, where the house was situated, should have been designated with a greater degree of certainty, so that the defendant might know how to prepare for his defence; and also to enable him to plead the record of a former recovery or acquittal, as the case might be.

¶19The case above cited, was an action for a libel, in *191charging the plaintiff with being a swindler. The Court decided, that a plea of justification to such an action, must state the-particular instances of fraud, upon which the charge was made; and that it was not sufficient to state that the plaintiff “ had been illegally, fraudulently, and dishonestly concerned with a gang of swindlers and common informers, and had been guilty of deceiving and defrauding divers persons, with whom he had dealings, &c.and in the illustration of this position, the judge made use of the expressions above quoted.

¶20It is admitted, that every material fact, which is a necessary ingredient in the offence, must be stated. Hence the place is material; it must be on the premises, which in this instance, is stated to be the house of the defendants, within the county of Tuscaloosa. Formerly, it was necessary in England, to name the town, hamlet, parish, or hundred, or the manor, castle, forest, or other known place, where the offence was committed, besides the county. This strictness was required, because the jury came from the place described. But in England, since the jury are returned from the body of the county, it is sufficient to state only the county in the venire, to which the jurisdiction of the Court extends ;* and in indictments for offences created by statute, if any ingredient mentioned in the statute, be stated in the words of the statute, the indictment will be good.

¶21In this State, the jury comes from the body of the county, and we have no subdivisions into parishes, hamlets, &c.; and though in some of our counties we have incorporated towns and cities, yet our juries do not come from them, and the jurisdiction of the *192Circuit Coui’t is not confined to them; they form a part •of, and are properly included in the general designation of the county, in which they are situated, and this must be the sense, in which the expressions used by Mr. Justice Bullet' were understood by him.

¶22The place, therefore, where the house is situated is sufficiently described, and would be sufficient to enable the party to avail himself of the record, in pleading a former acquittal, or conviction — a plea which often requires parol proof to make out a case of identity.

¶233. As to the third point, that the indictment is' double, the third count charging a distinct offence, from that in the first and second, it is sufficient to remark, that the authority relied upon by the counsel for the defendant,* only goes to show, that two or more offences cannot be charged in any one count. The books are full of authority to show, that indictments for misdemeanors may contain several counts for different offences, provided the judgment upon each is the same.†

¶244. As to the fourth point, that the defendants should have been charged separcditer, as well as jointly, it is only necessary to remark, that this is proper only where a number of persons are included in the same indictment, for keeping different disorderly houses. This is the law, as stated in the authority referred to the defendant’s brief.‡ But when the offence wholly arises from the same joint act, which is in itself criminal, as keeping a gaming house, although the offence of several can not but be several, because one man’s offence cannot be another’s; yet the defendants may be indicted jointly and severally, or *193jointly only, for it sufficiently appears that all are joined in such act — each must be guilty, and therefore some may be convicted, and some acquitted*

¶25We are, therefore, of the opinion, that there was no error in overruling the demurrer.

¶26It is well settled, that that which is not good on demurrer, is not good in arrest of judgment. Whatever is fatal to the demurrer is, therefore, fatal to the motion in arrest of judgment. The only objection that can be assigned for error on the latter motion is, that the fine assessed by the jury was less than the law of eighteen hundred and twenty-six authorised.

¶27To this it may he replied, that the defendants can not complain if the line is less than what the law considers their just deserts; no one can allege an error in his own favor.

¶28The judgment must, therefore, be affirmed.