People v. Sullivan

9 Utah 195

• Court: Utah Supreme Court
• Decided: June 15, 1893
• Status: Published

Opinions

BaRTCh, J.: •

The appellant was indicted by the grand jury of the first judicial district on the 1st day of October, 1891, for the crime of gaming. He pleaded not guilty, and also entered a plea of former conviction. To this last-mentioned plea the district attorney demurred on the ground that the same did not in law constitute a defense, which demurrer was sustained by the court. The defendant then withdrew the plea of not guilty, and entered a plea of guilty, whereupon the court sentenced him to pay a fine of $100, and to undergo imprisonment for the term of one month. From that judgment the defendant appealed to this court,' raising the question of the sufficiency of the special plea of former conviction.

The indictment charges that “the said J. 0. Sullivan, on the 1st day of August, A. D. eighteen hundred and ninety-one, at the county of Juab, in said Territory of Utah, and within the judicial district aforesaid, unlawfully did maintain, conduct, and carry on a certain gambling game, commonly called ‘faro/ and did permit and suffer divers idle and evil-disposed persons to play and game at said game of faro for divers sums of money.” This charges that the offense was committed, on the 1st day of August, 1891, and the defendant claims that he ought not to be further prosecuted for that offense, and avers that he has already been convicted of the same offense by the judgment of a justice of the peace.

The special plea, so far as it is material in the consideration of this case, is as follows: “That on the 19th day of September, 1891, a complaint, sworn to by one John T. Sullivan, was filed with the said justice of the peace, in said justice’s court, charging the said defendant with having, on the 1st day of January, 1891, at Eureka, in the •county of Juab, Territory of Utah, and on divers days thereafter from the day last aforesaid, to wit, January 1, 1891, up' to and including the 19th day of September, 1891, unlawfully conducted, opened, and carried on a certain gambling game, commonly known as ‘faro/ for money, and checks representing value.” Counsel for appellant contend that this complaint charges a continuous offense extending from the 1st day of January, 1891, to and including the 19th day of September, 1891, and, if this contention be correct, then further prosecution would be unwarranted, for the 1st day of August, the time charged in the indictment, is included within the time as laid in the complaint. But is the offense charged in the complaint continuous? Does it mean that the game was commenced on the 1st day of January, 1891, and continued to and including the 19th day of September, 1891? Stripped of verbiage, the charge is that the defendant “ unlawfully .conducted, opened, and carried on a certain gambling game, commonly called ‘faro/” on the 1st day of January, 1891, and on “divers days thereafter,” to and including the 19th day of September, 1891. The 1st day of January is a day certain, and on this day the defendant “ opened and carried on ” the game. The same may be said of the 19th day of September; and if on the last-named day the defendant “ opened and carried on ” the game, the presumption is conclusive that the game was closed on the previous day, for, if this be not so, then he could not “ open ” the game on the 19th day of September. The game might be “ carried on,” but it could not be “ opened ” unless it had been previously closed, or had not been carried on during the previous day. The same is true of every other day intervening between the two days mentioned, and thus each day a distinct offense may have been committed. This is also in harmony with the meaning of the word “game,” which Webster defines as “a single match at play; a single contest.”

To render an act continuous, its performance must be carried on without interruption, for when its performance ceases the act is complete and distinct; and, if afterwards a similar act is performed, it cannot be regarded as a continuation of the former. To make it continuous, it must be the result of a single impulse, and performed or carried •on without intermittence. Whart. Crim. PI. §§ 474, 475. In cases which are of a continuous character the act may •continue from day to day, and will constitute but one offense, regardless of the time of duration. Such are cases of nuisances, the keeping of a gaming table, bawdy house, tippling house, unlawful cohabitation, and the like. In this class of cases the indictment may allege that the offense was committed on a single day; but, if the prosecutor seeks judgment for a continuing offense, he must add a continuando, which Bishop, in his work on Criminal Procedure,, (volume 1, § 394) defines as follows: “A con-tinuando is an allegation in any appropriate form of words that an offense whereof a day of beginning is stated is continuing to another day stated.” It is claimed that-the complaint in the justice’s .court charged a continuous-offense, and the continuando is, “-on divers days.” The complaint is certain as to two days, but uncertain as to-any other, and hence the charge was good, and sufficient to sustain the judgment of the justice, but not good as to-the uncertain time. Where the allegation is meant to-charge a continuing offense, and a day certain is properly alleged, but the remainder of the allegation is inadequate as to time, the allegation is sufficient, the part which is uncertain being rejected as surplusage. In this case the continuance, was expressed by “ on divers days thereafter,” and as to such an allegation, and after giving numerous-approved forms, Bishop (in section 395, supra)-says: “The allegation, on such a day and on divers other- days and times between that day and some other, which was held good in civil pleadings, and in them practically superseded the foregoing forms, is not a continuando, though it is sometimes spoken of as such. In principle it is certain' as to two days and uncertain as to the rest; therefore void for repugnance where the offense is of a nature not continuing, and equally void for uncertainty where the continuance of it during the intermediate period is required.” Whart. Crim. Pl. § 125; Wells v. Com., 12 Gray, 326; U. S. v. La Coste, 2 Mason, 129; Rex v. Dixon, 10 Mod. 335; People v. Adams, 17 Wend. 475.

The statute law of this Territory in reference to the crime-under consideration is found in section 4541, Comp. Laws TJtah 1888, which reads as follows: “Every person who-deals, plays, or carries on, opens or causes to be opened, or who conducts, either as owner or employé, whether -for hire- or not, any game of faro, monte, roulette, lansquenet*. rouge et noir, rondo, or any game played with cards, dice, •or any other device, for money, checks, credit, or any other representative value, is guilty of a misdemeanor.” This .statute refers to the game itself, and “ every person who ■deals, plays, or carries on ” such a game is guilty of a misdemeanor. It is clear that each act of this kind constitutes an offense, and, while this does not depend upon the dime of its duration, yet, where' a continuous offense is relied upon, the time must not be left uncertain in the allegation. We think the complaint in the justice's court did ■not allege the time with sufficient certainty except as to ■the two days, and that therefore the demurrer to the special plea was properly sustained. Counsel for appellant cites .numerous cases, but they fall principally within the class •of cases which are of a nature continuous. In the case of Dixon v. Corporation, 4 Cranch, C. C. 114, the charge was for keeping a faro table, and, although that was continued from day to day, the court held it to be a single offense, which does not conflict with the views expressed herein, for in this case the charge is not for keeping a faro table, which is in its nature continuous, but for opening and carry- ■ 'ing on a faro game, which may or may not be continuous. We do not think that case in point here. Nor do we agree with counsel that the offense charged in the indictment is a part of the same transaction as that charged in the complaint. It is a similar transaction, but, in so far as is manifest from the complaint, it is a distinct and separate offense. The judgment of the court below is .affirmed.

.ZaNE, C. J., concurred.