Hubbard v. State

Supreme Court of Georgia

Hubbard v. State

51 S.E. 11, 123 Ga. 17, 1905 Ga. LEXIS 363

CourtSupreme Court of Georgia

DecidedMay 13, 1905

StatusPublished

Cited by8 cases

This text of 51 S.E. 11 (Hubbard v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hubbard v. State, 51 S.E. 11, 123 Ga. 17, 1905 Ga. LEXIS 363 (Ga. 1905).

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Lumpkin, J.

Hubbard was indicted for gaming, it being charged that he “ did unlawfully play and bet for money and other things of value at a game played with cards, dice, and balls.” A demurrer to the indictment was overruled. After conviction he [18]*18moved for a new trial, and, upon a refusal thereof, excepted. On the trial only one witness was introduced, who testified, that he went on a raid after gamblers, and on entering a room about ten o’clock at night saw some negroes sitting around an old canvas cot on which were lying some cards, and a few nickels and dimes, that he made a grab for the money, and the negroes did likewise and that the defendant was one of the party. He said, “ I did not see any dice or balls.” The witness did not identify any of the parties present except the defendant.

1, 2. An indictment under section 401 of the Penal Code may charge in one count conjunctively that the defendant played and bet at a game played with cards, dice, and balls, without being subject to demurrer. At the trial the offense could be established by proof of playing and betting at "a game played with either cards, dice, or balls. Wingard v. State, 13 Ga. 396; Eaves v. State, 113 Ga. 749 (5); Cody v. State, 118 Ga. 784; Brand v. State, 112 Ga. 26; 1 Bish. New Cr. Proc. §436; Bish. Stat. Cr. (3d ed.) § 244. Had the indictment charged the offense as having been committed in one of several ways, in the alternative, it would have been more open to objection. Grantham v. State, 89 Ga. 121; Eaves v. State, supra; Henderson v. State, 113 Ga. 1148. This ruling in no way conflicts with the decisions in Langston v. State, 109 Ga. 153, and Long v. State, 12 Ga. 293. In so far as the remark in Woody v. State, 113 Ga. 927, 928, may appear to conflict with the decisions herein cited, it is not authority.

3. It has been held that -it is not now necessary in this State to allege with whom the gaming took place. Hinton v. State, 68 Ga. 322; Brand v. State, 112 Ga. 25. But if an indictment jointly charges the defendant and other named persons with the offense of gaming, without charging' that others participated in the act specified, the conviction is not sustained by evidence which merely indicates that the defendant participated in a game with certain persons, but fails to show that any of the other joint defendants were engaged in it. Pullen v. State, 116 Ga. 555; Woody v. State, 113 Ga. 927; Grant v. State, 89 Ga. 293 (4). Under these rulings the judgment is not supported by the evidence.

Judgment reversed.

All the Justices concur, except Candler, J, absent.

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Lumpkin, J.

Hubbard was indicted for gaming, it being charged that he “ did unlawfully play and bet for money and other things of value at a game played with cards, dice, and balls.” A demurrer to the indictment was overruled. After conviction he [18]*18moved for a new trial, and, upon a refusal thereof, excepted. On the trial only one witness was introduced, who testified, that he went on a raid after gamblers, and on entering a room about ten o’clock at night saw some negroes sitting around an old canvas cot on which were lying some cards, and a few nickels and dimes, that he made a grab for the money, and the negroes did likewise and that the defendant was one of the party. He said, “ I did not see any dice or balls.” The witness did not identify any of the parties present except the defendant.

1, 2. An indictment under section 401 of the Penal Code may charge in one count conjunctively that the defendant played and bet at a game played with cards, dice, and balls, without being subject to demurrer. At the trial the offense could be established by proof of playing and betting at "a game played with either cards, dice, or balls. Wingard v. State, 13 Ga. 396; Eaves v. State, 113 Ga. 749 (5); Cody v. State, 118 Ga. 784; Brand v. State, 112 Ga. 26; 1 Bish. New Cr. Proc. §436; Bish. Stat. Cr. (3d ed.) § 244. Had the indictment charged the offense as having been committed in one of several ways, in the alternative, it would have been more open to objection. Grantham v. State, 89 Ga. 121; Eaves v. State, supra; Henderson v. State, 113 Ga. 1148. This ruling in no way conflicts with the decisions in Langston v. State, 109 Ga. 153, and Long v. State, 12 Ga. 293. In so far as the remark in Woody v. State, 113 Ga. 927, 928, may appear to conflict with the decisions herein cited, it is not authority.

3. It has been held that -it is not now necessary in this State to allege with whom the gaming took place. Hinton v. State, 68 Ga. 322; Brand v. State, 112 Ga. 25. But if an indictment jointly charges the defendant and other named persons with the offense of gaming, without charging' that others participated in the act specified, the conviction is not sustained by evidence which merely indicates that the defendant participated in a game with certain persons, but fails to show that any of the other joint defendants were engaged in it. Pullen v. State, 116 Ga. 555; Woody v. State, 113 Ga. 927; Grant v. State, 89 Ga. 293 (4). Under these rulings the judgment is not supported by the evidence.

Judgment reversed.

All the Justices concur, except Candler, J, absent.

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51 S.E. 11, 123 Ga. 17, 1905 Ga. LEXIS 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hubbard-v-state-ga-1905.

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