Rice v. State

3 Kan. 141

• Court: Supreme Court of Kansas
• Decided: February 15, 1865
• Status: Published

Opinion

By the Court,

Crozier, C. J.

This was a prosecution in the Criminal Court of Leavenworth county, against John T. Nice, under the following section of the Crimes Act, to-wit:

“ Sec. 230. Every person who shall set up or keep any table or gambling device, commonly called A. B. C., faro-bank, E. O., roulette, equality, or any kind of gambling table or gambling device, adapted, devised and designed for the purposes of playing any game of chance, for money or property, and shall induce, entice or permit any person to bet or play at or upon any game played at or by means of such table or gambling device, or on the side of or against the keeper thereof, shall on conviction be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail not exceeding one year, and by fine not exceeding one thousand dollars.”

The following was the indictment:

The State of Kansas, v. Bálty Nice. Indictment.

The grand jurors for the state of Kansas, and in and of the county of Leavenworth, duly impanneled, sworn and charged to inquire of offenses committed within said county, in the name and by the authority of the state of Kansas, upon their solemn oaths, do present, that Baity Nice, late of said county, in the county of Leavenworth, and within the jurisdiction of the court, on the first day of November 1864, and on divers other days and times between that day and the day of finding this bill, unlawfully and injuriously did set up and keep a certain gaming table, commonly called a faro-bank, for gain, and to play for and win and gain money, and did then and there, to-wit: on said first day of November, A. D. 1864, and on said divers other days and times between that day and the day of finding this bill, unlawfully and injuriously induce diyers idle and ill-disposed persons, whose names are to the grand jurors unknown, to bet and play at and upon said gaming table, commonly called a faro-bank, and to bet and play at and upon a certain game commonly called faro, played at and by means of said gaming table commonly called a faro-bank, to the corruption of good morals, and the common nuisance of all the citizens of the state residing in the neighborhood.

Bu W. IDE, Dist. Att’y,

First Judicial District.

To this indictment the defendant below filed a special plea, denying the jurisdiction of the court, to which plea a demurrer was filed and sustained by the court. The defendant was allowed to put in a plea of not guilty, and the cause having been tried by a jury, the defendant was convicted. Motions were made for a new trial, and in arrest of judgment, both of which were overruled and judgment rendered against the defendant.

Upon the trial the court charged the jury as follows:

“ The defendant is charged with keeping a certain gaming table commonly called a faro-bank. Section 230 of the ‘ Act concerning Crimes and Punishments,’ is the one under which this case is prosecuted. Every person who shall set up or keep any table or gambling device commonly called A. B. C. faro-bank, E. O. roulette, equality, or any kind of gambling table, or gambling device, adapted, devised, and designed for the purpose of playing any game of chance, for money or property, and shall induce, entice, or permit any person to bet, or play at or upon any such gaming table or gambling device, or at or upon any game played at or by means of such table or gambling device, or on the side or against the keeper thereof, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail, not exceeding one year; and by fine not exceeding one thousand dollars.

The defendant is presumed to be innocent of the offense charged, and before you are warranted in a vey-dict against-him', each one of the facts which go to make up the offense charged, which are essential parts of the offense, as set forth in the indictment, must be established by the testimony introduced before you, to your satisfaction beyond any reasonable doubt. The transaction complained of must have taken place within the limits of this county to give jurisdiction to this court, and within two years prior to the commencement of this prosecution, December 9th, 1864, to avoid the statute of limitations. It must appear from the testimony,

1st. That at the place mentioned by the witness a gambling device or instrument was in existence.

2d. That that gambling device was what is generally known as a faro-bank.

3d. That the defendant was the keeper of tkat faro-bap k.

To establish the fact of one being the keeper of a farobapk, it is sufficient to show that he appeared thus acting as the one hawing control, in charge, superintending the same. It is not necessary to show that he was actually the owner.

4th. That the defendant being the keeper, kept such gambling device for the purpose of gain.

5th. That defendant being the keeper and keeping the said device for purposes of gain, induced or permitted other persons to bet and play upon such gambling device either on his side or against him.”

To this charge the defendant excepted $nd asked the court to charge the jury as follows;

“ 1st. That to constitute the offense charged in the first count of the indictment, it is necessary that the particular gambling device, alleged to have been set up and kept, shall have been adapted, devised, and designed for the purpose of playing any game of chance, and that as necessary to constitute the offense, it is necessary to allege in the indictment that the particular gambling device, charged to have been set up 'and kept, was adapted, devised and designed, for the purpose of playing any game of chance, and that the indictment, not containing the said words, or others £ conveying the same meaning,’ the said defendant cannot be convicted under the said indictment.

2d. That to constitute the said offense it is necessary that the said gambling device charged to have been set up and kept, shall have been adapted, devised, and designed for the purpose of playing any game of chance, for money or property, and that it shall be alleged in the indictment; that no such averment being made, nor other words therein used £ conveying the same meaning,’ the defendant cannot be convicted under the indictment.

3d. That if the jury believe from the evidence in this case that the offense ■ charged, if committed at all, was committed within the corporate limits of the city of Leavenworth, then this court has no jurisdiction thereof, and the defendant cannot be convicted under the indictment.

4th. That to constitute the offense charged in the indictment, it is necessary to be alleged therein, that some person or persons did actually bet and win or lose money upon the particular gambling device, alleged to have been set up and kept, and that no such allegation being made in the said indictment, the said defendant cannot be convicted under said indictment.

5th. That unless the jury believe from the evidence in this cause, that the said defendant did set up and keep á gambling device, such as charged in the indictment, £ adapted, devised and designed for the purpose of playing any game of chance,’ they cannot find him guilty, under said indictment.

. 6th. That unless the jury believe from the evidence that money or other property was actually bet and lost upon such gambling device, alleged in said indictment, they cannot find the defendant guilty under said indictment.

7th. That it is necessary, in order to convict the defendant, that every material allegation of the indictment should be proved, beyond a reasonable doubt; that allegations not material to. be made, may become material to be proved when they are alleged in the indictment; that every allegation herein, except that as to the particular date of the offense, is material, and that unless the jury shall believe from the evidence, every allegation therein, except as above [excepted, they cannot find the defendant guilty.

8th. That in order to convict the defendant under the indictment, the State must establish by evidence to the satisfaction of the jury, and beyond a reasonable doubt, that the defendant did set up or keep a gambling device; that such gambling device was commonly called “faro-bank ;” that the faro bank was a gambling device, adapted, devised and designed, for the purpose of playing at a game of chance, for money or property; that the defendant did induce, entice or permit any person or persons, to bet at or play at or upon said faro-bank; that such person or persons having been induced, enticed or permitted by the defendant to bet or play upon said faro-bank, did bet money or property on the side of the keeper, or did bet money or property against the keeper.

9th. The mere keeping such a device, commonly called faro-bank, in the defendant’s house or room, is no offense under the statute.

10th. The jury must be satisfied from the evidence, beyond a reasonable doubt, that the game of faro is a game of chance and not of skill. "

11th. If the State fails to establish by legal evidence, that a game of chance was played upon a gambling device, called faro-bank,'for money or property, on the side of or against the keeper, then the jury must acquit the defendant under the indictment.

12th. The setting up of a gambling device or table, called faro-bank, is no offense under the statute on which the indictment is found, unless a game be played, and money or property bet.

13th. Simply setting out a table, or putting upon it a pack of cards, would not be setting up a gaming table or faro-bank.

14th. If the jury believe, from the evidence, that the defendant set out the table and placed on it the cards, and a game is played, the defendant participating in the game, and wins or loses money or property, yet they may acquit the defendant; he may be a bettor against the bank.

15th. A person may keep a faro-bank who has no interest whatever in it. He may barely deal the cards for •the real banker. Such a person could not be considered as having set up a bank or gaming table.

16th. If the jury shall find from the evidence that chance enters into the game of faro, but that there is more skill than chance in it, so as to characterize it as a game of skill, they must find the defendant not guilty.

17th. If the jury have a reasonable doubt whether faro is a game of chance or a game of skill, they ought to find the defendant not guilty.

17&. Where the statute speaks of a gaming table or device for a particular purpose, it is not within the act, unless the possessor of it intends to employ it for that purpose.

18th. To convict the defendant the jury must be satisfied from the evidence that the defendant did set up the device in question, and the jury must be satisfied from the evidence that the device is such, as was devised, adapted and designed to play a game of chance.

19th. If the State fails to satisfy the jury from the evidence that property was bet at said game of faro, but does satisfy the jury from the evidence that notes or bank bills, or checks were bet at said game; yet this would not be sufficient tinder the statute to establish that money was bet on a game of chance. The term money has a- technical meaning, and means nothing but lawful money of the United States. And the State must by legal evidence establish to the satisfaction of the jury, that legal or lawful money was bet at the game of faro.

20th. A charge of playing for money is not made out by proof that the by-standers were betting, but that the defendant was not interested in any stake.

21st. The term property, as used in the statute upon which the indictment is made, includes ‘ personal property,’ or ‘real property,’ and personal property is to be construed to mean goods, chattels, effects, evidences of rights in action, and all written instruments, by which any pecuniary obligation, or any right or title to property real or personal, shall be created, acknowledged, assigned, transferred, increased, defeated, discharged or diminished; and real property includes every estate in trust, and rights in lands, tenements and hereditaments. If the jury are not satisfied beyond a reasonable doubt, by the evidence, that property defined as aforesaid, was bet at the game of faro, or at or upon a faro-table, then the jury should acquit the defendant.

22d. If the jury believe from the evidence that the defendant induced, enticed, or permitted persons to bet at the game of faro, or at or upon a table commonly called faro-bank, and that the name or names of such persons were known to the grand jurors at the time of finding the indictment against the defendant, or if .the grand jurors could by reasonable diligence and inquiry have known the names of the persons who were permitted to bet on said game of faro, then they must acquit the defendant.

23d. That if the jury believe from the evidence that the gaming device or table, charged to have been kept by the defendant was commonly called ‘ the tiger,’ they cannot convict the defendant under this indictment.

24th. That if the jury believe from the evidence, that for convenience,- ‘ chips or counters ’ were used in betting at the game — that the defendant gave these chips or counters to the players in exchange for money or its representative, that, nevertheless, the said defendant was not under any legal obligation to redeem the said ‘ chips or counters ’ when presented to him by the players, and that consequently the winning or losing of the chips or counters, was not a winning or losing of money, or property, under the requirements of the statute, and the said defendant cannot be found guilty under the indictment upon such evidence.”

Of these instructions, those numbered six, nine, twelve, thirteen, seventeen and a half, nineteen and twenty, were given, and the remainder refused, to which refusal the defendant excepted.

The first error assigned, is that the court erred in sustaining the demurrer to the plea to the jurisdiction of the court.

The Criminal Court of Leavenworth county was established in March 1862, and there was conferred upon it the same jurisdiction in criminal matters that had been conferred upon the District Court of that county. This jurisdiction is prescribed by the latter portion of the first section of the act relating to the organization of courts of justice, found on page 454 of the Compiled Laws, and is in these words: “ They,” referring to the District Courts, “shall have original jurisdiction of all crimes and offenses except in cases of minor offenses, the exclusive jurisdiction of which is or may be possessed by justices of the peace, or that may be vested in courts inferior to the District Courts, and shaE have power to issue remedial and all other processes.” Other statutes give to justices of the peace jurisdiction to try minor offenses, and to the recorders of cities power to try offenses arising under city ordinances. There is no question made but that prior to February 24th, 1864, the offense for which the defendant was prosecuted was properly triable in the Criminal Court of Leavenworth county; but it is insisted that the act of that date amending the general laws incorporating cities, deprived that court of all jurisdiction over the subject. The fifth clause of the second section of that act gives to the city council the power “ to restrain, prohibit and suppress tippling houses, billiard tables, ten-pin alleys, houses of prostitution and other disorderly houses and practices, games and gamblA/ng houses, desecrations of the Sabbath day, commonly called Sunday, and all kinds of public indecencies.” This clause, it is claimed, gives cities the exclusive power to declare the keeping of gambling houses within their limits to be offenses, and to provide for the inflicting of punishments therefor; and especially so in this instance, as the case arose in the city of Leavenworth, that city having enacted an ordinance to carry out the power. To this it is a sufficient answer to say that the power conferred upon the city council is not exclusive in terms, and cannot, by implication, be so extended as to nullify the plain provisions of a statute not in conflict with it. The law under which this prosecution was instituted authorized a fine as high as one thousand dollars, while the city cannot impose and enforce one to exceed one hundred dollars. Can it then be reasonably supposed that the legislature intended in this indirect manner to change the law as to the extent of the fine ? We cannot think so. The evident intention was to give to city authorities power concurrent with that of the state authorities to suppress these pestiferous evils, and not to confine it to either. The question is not, whether when, the city shall have exhausted its power in a given case, the state can inflict punishment for the same offense? But whether either may not inflict the prescribed penalty. It is not necessary in this case to decide whether both can punish for the same act; but we have no doubt but that the one which shall first obtain jurisdiction of the person of the accused, may punish to the extent of its power.

But the appellant claims that the fourteenth section of the act of 1864, deprives the Criminal Court of jurisdiction. The clause relied upon is in these words: “ The recorder shall, by virtue of his office, be a justice of the peace, and shall have all the powers conferred or to be conferred' by law upon justices of the peace, except in civil cases. Said recorder shall have exclusive jurisdiction to hear and determine all offenses against the ordinances of the city, and all cases of misdemeanors under the laws of the state, arising within the limits of said city, in which the fine which may be imposed does not exceed one hundred dollars or the imprisonment one year, and shall have exclusive original jurisdiction of all offenses against the laws of the state committed within the limits of said city.”

It was earnestly insisted upon in the argument that this latter clause took from the Criminal Court all power and jurisdiction over offenses committed within the city of Leavenworth, and conferred it upon the recorder of that city; that that officer alone has jurisdiction to try every offense, from murder in the first degree down to petit larceny, -which shall arise within that city. The “ recorder’s court ” is not a court of record; he is not authorized to summon a grand jury ; he cannot impannel a petit jury exceeding six in number ; for murder in the first degree he could not inflict a penalty beyond a fine of one hundred dollars and imprisonment for one year,-; so that the construction contended for would result in letting the murderer go scotfree, and punishing the man, who in a moment of passion should inflict a slight scratch upon the hand of his neighbor. We cannot attribute to the legislature the intention to accomplish an object so manifestly impolitic and disastrous, unless the language they have used compels us so to do. This court and every other court is bound to cany into effect the will of the legislature when that wall is not in contravention of the paramount law; and in this case, if we were convinced that it was the intention of the law-makers to bring about a state of affairs like that sketched above, it would be our duty to carry out that intention however much we might deprecate the result. We cannot look to the consequences of an act of the legislature for the purpose of determining its validity; but we may look to them, if they will throw any light upon the intention of the law-maker.

We agree with counsel for the appellant that the language of the latter clause quoted above seems to favor their construction; and were there nothing else in the act or in other acts upon the subject, we would probably be bound to sustain their interpretation. The phrase “ exclusive original jurisdiction,” has a well ascertained legal signification, and were there nothing in the legislation to quality it, we should be bound to agree with counsel that the only tribunal in which a person could be tried for an offense committed in Leavenworth, would be before the recorder of that city. But considering the whole sentence in which the phrase occurs, such evidently was not the intention of the legislature. The first clause confers upon the recorder all the powers of a justice of the peace in criminal matters; i. e. the general power to inquire into the commission of offenses and to hold to bail, &c. The second clause gives him exclusive jurisdiction of offenses against the ordinances of the city, and exclusive jurisdiction of misdemeanors under the laws of the state, arising within the city, where the law does not authorize a fine exceeding one hundred dollars, or imprisonment exceeding one year. Under the first clause he has jurisdiction concurrent with any other justice of the peace in the county, to institute preliminary examinations and hold to bail for offenses greater than those described in the second clause, committed in the county outside of the city, and were there nothing in the section but the first two clauses, this concurrent jurisdiction would extend to the whole county, including the city.

Having given the recorder all the powers of a police judge, under the ordinances, and having conferred upon him the exclusive power to punish for minor offenses committed within the city; and also having provided him or authorized him to be provided with the necessary ministerial officers and machinery, for the convenient dispatch of business, very good reasons might be given for conferring upon him the exclusive power to institute preliminary examinations and hold to bail for all greater offenses committed within the city; and it seems to iis that such was the intention of the legislature in adding the last clause. If the object was such as contended for by counsel for the appellant, there was no necessity for the latter part of the second clause. “ Exclusive original jurisdiction of all offenses ” under the counsel’s construction, would include the power to punish fob minor offenses as well as greater ones; but it would be hardly in accordance with the intelligence generally conceded to legislatures to suppose that they intended to provide twice for the same thing in succeeding clauses of the same sentence. In the absence of absolute compulsion we will not so presume, although the words used in their technical sense, might seem so to require.

' Therefore looking at the whole section, construing it all together, and with reference to existing laws, we are of opinion that the legislature intended by the latter clause of the sentence referred to, to confer upon the recorder the exclusive power to institute preliminary examinations and hold to bail for the higher crimes committed in the city of Leavenworth, and not thereby to give him sole power to try every grade of crime which might be committed in that locality. Hence the demurrer to the plea was properly sustained.

After the jury had been sworn and a witness was put upon the stand, the appellant moved the court to exclude all testimony under the indictment, on the ground that a public offense was not. charged against him. Although the indictment may have been defective it would not have been correct practice to have considered the question at that stage of the proceeding or when presented in that manner. The proper way to raise the question of the sufficiency of the indictment before verdict, is by motion to quash; after verdict, by motion in arrest of judgment. Of course a question of the jurisdiction of the court may be presented at any time. Ve do not pretend to say that it would be error to sustain the motion made under the circumstances, indicated; but we do say that overruling the motion would not be error. If the court could clearly see that' in case a verdict were rendered against the defendant the judgment must be arrested, and that therefore further proceeding in the trial would be a useless consumption of time, it would be proper to arrest the case. But ordinarily, the court should not stop in the midst of a trial to consider the indictment. If the defendant neglects to make his motion to quash, he should be made to wait until he may present his objection to the indictment by a motion in arrest of judgment. In this case we are unable to see that the appellant was prejudiced by the denial of his motion.

After the verdict the appellant moved in arrest of judgment on the ground of the insufficiency of the indictment, which brought before the court in a legitimate way the question presented by his former motion, the overruling of which motion makes it necessary for us to consider the indictment.

The first objection urged, is that the seventh section of the act of February 12th, 1864, abolishing grand juries, makes it optional with the judge of the court whether a grand jury shall be summoned; and for that reason the former statute on the subject of grand juries is void, as not having a uniform operation throughout the state. The complaint is not that the act of 1864 is inoperative, but because of the seventh section thereof, the whole grand jury machinery of the former statute, is abrogated, and hence there can be no legal grand jury.

We cannot see the force of the objection. Which law is it that has not a uniform operation throughout the state? It cannot be the former statute, because wherever a grand jury shall be summoned within the state it must be done according to that act. It does not provide when or how frequently they shall be summoned. Thirty days before the holding of a court at which the jury shall be required by law, the names of the persons to compose it shall be drawn. The seventh section above referred to says that the term of the court for which the jury shall be drawn, shall be that designated by the judge. The old statute provides the machinery; the new one authorizes the judge to put it in motion. The old law applies to all grand juries; the new one to all judges of courts of record having criminal jurisdiction. This looks to us like uniformity of operation.

Another objection to the indictment is that it does not allege that the faro-bank was a gambling device, “ adapted, devised and designed for the purpose of playing any game of chance for money or property.” The statute prescribes a penalty for keeping a faro-bank, calling it a “gambling device;” i. e. an institution devised for gambling purposes. The legislature took cognizance of the fact that it was “ adapted, devised and designed for the purpose of playing a game of chance for money or property,” and hence by name denounced it. If other devices than those named, are set up, they must be charged to be “ adapted, devised,” &c.; i. e. they must be described so as to show them to be “ gambling tables or devices.”

It is objected further that the indictment does not allege that money or property was bet or lost or won upon the device. It is alleged, however, that persons did bet and play at the game. What could be bet but “ money or property,” and how could any body “ play ” at the game -without losing or winning money or property. It is unnecessary to examine this objection further.

After the testimony was all in, the court charged the jury in the language set out in a former part of this opinion. This court has examined that charge carefully without being able to detect any error in it. It is full, clear, comprehensive, well worded and in excellent judicial taste; and we do not recollect in our reading a better specimen of juridical literature. Even counsel find but a single objection to it, and that is founded upon a misconception of the third clause. The court does not say that it will be sufficient if the defendant appeai-ed to have the control, &c., but that if he “ appeared there acting as the oxxe having control,” &c., i. e. that he coxxducted himself there as tlxe one having control, &c., it will be sufficient. A reasonably intelligent jury coxxld xxot xxxistake the xneaning of the court.

We have also carefully examined the twexxty-foixrth instruction asked by the defexxdant, and counsel will not accuse us of a waxxt of that respect due from the court to its bar when we suggest that some of these charges were framed without due coxxsideration. For example : in the first two and fourth, the court is asked to say to the jury that the indictment is not sufficient. Now if no offense was chax-ged, there was xxo issue for the jury to txy,- and they could render no verdict. The judge in effect, was asked to say to the jury: I have the right to determine whether the indictment charges an offense. Thex-e is no offense charged and no issxxe joined, therefore you must find the issue joined for the defendaxxt. This could hardly be said to be correct practice. Had the indictment been determined insufficient, probably the better course for the court to have pursued would have been to quash it, and either discharged the defendaxxt or held him as tlxe law provides, to answer to another indictmexxt.

Some of the other instrxxctions embodied legal propositions proper to be given to tlie jury ; but all .such which were refused were included in the charge already given, and the court was not bound to repeat them in a different form.

Special attention has been called to the twenty-second instruction asked. We are well aware of the general rule upon which it is predicated. It originated from the principle that the defendant had a right to be informed of the accusation against him, but it ultimately hardened into an arbitrary rule and was applied in cases where the reason of its original adoption did not obtain. The divergence was at first almost imperceptible, but it continued to widen until the rule became as applied to many of the cases, purely technical. The same may be said of many others of the common law, which in a spirit of more liberal and reasonable policy have been entirely swept away. Courts have latterly to a greater' extent disregarded technical rules where the reason of their adoption did not exist, and it is one of the glories of modern jurisprudence that the substance shall not be sacrificed to forms.

In this instance it is difficult to discover a good reason for applying the rule in its common'law rigidity. The only person whose name the evidence clearly shows to have been known to the grand jury was a witness at the trial. The defendant had all the notice that the insertion of the witnesses’ name in the indictment could have given him, so that it is difficult to see how he was prejudiced by the refusal' to give the instruction.

In addition to these considerations,' the statute of the state imperatively requires this court to disregard technical errors and defects and exceptions which do not effect the substantial rights of the parties. "We are as much bound to give effect to this provision as any other in the laws. Its object is to give to this court the same right to disregard technical rules, that the court that originally adopted them had to cease to force them after they became technical. .It merely puts into the form of a statute the axiom that the rule ceased with the reason of it.

We think the defendant has had a fair trial before the proper tribunal, that he was sufficiently informed of the accusation against him, that the evidence clearly shows his guilt, and that there was no error or defect in the proceedings which prejudiced his substantial rights. The judgment will be affirmed.

All the justices concurring.