State v. Hamilton

67 A. 836, 22 Del. 433, 6 Penne. 433, 1907 Del. LEXIS 43

• Court: New York Court of General Session of the Peace
• Decided: September 25, 1907
• Docket: Indictment for Gambling, No. 38
• Status: Published

Opinion

Lore, C. J.:

We think, under the circumstances, that this testimony is admissible as tending to show guilt.

Cooper, for the defendant, after the State had put in its evidence, which showed that the floor in question was that of one of the rooms of the defendant’s dwelling house, moved that the jury be instructed by the Court to return a verdict of not guilty, on the ground that the floor of a dwelling, as alleged in the indictment, was not such a “device” as was contemplated by the section of the statute under which the indictment was drawn.

State vs. Norton, 9 Houst., 586; 20 Cyc. L. and P., 906; Words and Phrases Judicially Defined, Vol. 4, p. 3033.

Hastings, Deputy Attorney-General, argued in support of the indictment but cited no authorities.

Lore, C. J.:—The Court do not think that the floor of a dwelling occupied by a man is a device within the meaning of Sec. 2, of Chap. 454, Vol. 11, Laws of Delaware.

Mr. Hastings:—Then I desire to enter a nolle prosequi in this case.

Mr. Cooper:—I insist upon my motion that the Court instruct the jury to return a verdict of not guilty.

Lore, C. J.:—We think under the circumstances of this case that the State has a right to enter a nolle prosequi. We refuse to instruct the jury to render a verdict of not guilty.

A juror was thereupon withdrawn, the jury discharged and a olle prosequi entered.