Durham v. State

1 Blackf. 33, 1819 Ind. LEXIS 1

• Court: Indiana Supreme Court
• Decided: July 8, 1819
• Status: Published

Opinion

Holman, J.

In determining the sufficiency of the verdict, it cannot be material of what part of the indictment the defendant is found not guilty, if the charge of which he is convicted, contains in itself a full and specific offence. By the 4th section 'of the act to prevent gaming, approved the 30th of December, 1816, it is enacted, that if any person shall at any time play in any ordinary, tavern, &c., at any game or games whatsoever, except of athletic exercise; or shall bet on the hands or sides of those that do play, &c., he shall on conviction be fined, &c. It appears very clearly from these provisions, that playing and betting are two distinct offences, and not constituent parts of the same offence, on either of which an indictment may be maintained. This indictment would have been substantially sufficient, if there had been no allegation about betting; nor does that allegation, in any respect, affect the balance of the indictment, whether it is considered as surplusage, or a distinct charge which was unsupported by evidence. The charge of card-playing, of which the plaintiff in error has been convicted, has no necessary connexion with the unsupported allegation of betting; but standing in the law, and in the indictment, as a complete definite offence, it is in itself sufficient to authorize the judgment of the Court

(1).

Meek and Stevens, for the plaintiff. Dewey, for the state.

Per Curiam.

The judgment is affirmed, with costs.

The jury may convict the defendant upon one count of the indictment, and acquit him upon another. So upon one part of a count capable of division : as, on a count for composing and publishing a libel, the defendant may be found guilty of publishing only. So, where the accusation includes an of-fence of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less. 1 Chitt. Crim. Law, 637, 638.