{
  "id": 8650955,
  "name": "STATE v. W. H. HOWE",
  "name_abbreviation": "State v. Howe",
  "decision_date": "1888-02",
  "docket_number": "",
  "first_page": "449",
  "last_page": "453",
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      "cite": "100 N.C. 449"
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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      "reporter": "N.C.",
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    {
      "cite": "78 N. C., 496",
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  "last_updated": "2023-07-14T18:59:04.640355+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. W. H. HOWE."
    ],
    "opinions": [
      {
        "text": "Davis, J.\nThere were two indictments, and the defendant made a motion to the effect that the Solicitor should be required to elect and try only on one. This was refused, and the Court\u2019ruled that the two indictments should be treated as two counts in one indictment.\nThe first charged, that the defendant, \u201con the first day of January, etc., * * * * in a certain house of him, the said,W. H. Howe, and in a certain car of him, the said W. H. Howe, with force and arms, at, and in the county aforesaid, did establish, use and keep a certain gaming table, the -said table not being a faro-bank, but commonly called \u25a0\u201c Lotto,\u201d at which table certain games of chance were played, .against the form of the statute,\u201d etc.\nThe second charged that the defendant \u201c did wilfully and \u00a1unlawfully establish, use and keep, and maintain a certain \u25a0gaming table, not being a faro-bank, but commonly known \u00a1as the game of Lotto or Keno, which said games of Lotto or Keno are games of chance at which money is bet, against -\u00b1he form of the statute,\u201d etc.\nThe defendant moved to quash the indictment for that,\n1. \u201c The first count is fatally defective, because it does not charge that games of chance were played for money or other property.\n2. \u201c The first count is defective, because it does not charge that the offence was committed unlawfully and wilfully.\n3. \u201c The second count is fatally defective, because it does not charge that games of chance were played at said table.\u201d\nThe defendant is indicted under \u00a7 1045 of The Code, which declares, that, \u201c If any person shall establish, use or keep any gaming table, (other than a faro-bank) by whatever name such table may be called, at which games of chance shall be played, he shall on conviction thereof be fined,\u201d etc.\nThe indictment before us follows the language of the statute, but the defendant says that the first count is defective, because it does not charge that games of chance were played \u201c for money or other property,\u201d or that the \u201c offence was committed unlawfully and wilfully,\u201d and he says the second is defective, because it fails to \u201c charge that games of chance were played at said table.\u201d Whether in the statute \u201c gcrning tables \u201d does not, ex vi termini, mean a table at which games of chance or hazard are played for money or other thing of value, it is not necessary for us now to determine, though Bishop on Statutory Crimes, \u00a7 860, says: \u201c Even the word gaming, without the prefix unlawful, seems usually to imply something of an unlawful nature, as betting on the sport,\u201d etc., nor need we determine what is necessary to constitute the \u201c establishing, using or keeping \u201d a gaming table.\nIs it sufficient in this case to charge the offence in the language of the statute?\nIn State v. Liles, 78 N. C., 496, it is said to be a \u201c well settled general rule that, in an indictment for an offence created by statute, it is sufficient to describe the offence in the words of the statute.\u201d Where the words of the statute are descriptive of the offence they, or words equivalent, must be used to charge the described offence. State v. Morgan, 98 N. C., 641; State v. Whiteacre, 98 N. C., 753.\nThe State v. Simpson, 73 N. C., 269, is, as are some others cited, an exception to the general rule, and is undoubtedly predicated upon the inadvertent omission of the Legislature to insert the words \u201cunlawfully and wilfully,\u201d or some equivalent word, or words to create the offence intended. The proper construction of the statute, under which Simpson was indicted, rendered the insertion of some such words necessary. They were necessary to describe the act intended to be made an offence by the statute, which declared that \u201c if any person shall kill or abuse any horse, cow, hog, etc., the property of another, in any inclosure, not surrounded by a lawful fence, such person shall be deemed guilty,\u201d etc.\nPbausoN, C. J., said \u201c it is apparent from the nature of things, that these words are too broad and go beyond the meaning of the law makers * * * Common sense forbids the idea that it was-the intention of the General Assembly to send to jail every person, who, by accident, kills, etc., * * * * Can any one suppose it was the intention of the General Assembly to make such acts indictable ? Yet, they come within the words of the statute, which shows the necessity of adding the words \u201c unlawfully and wilfully \u201d in order to take such cases out of the operation of the statute. That these, or equivalent words were omitted by inadvertence on the part of the draftsman, and must be added by construction, in order to express the meaning of the act, can be seen,\u201d etc. So in the State v. Stanton, 1 Ired., 424, Ruffin, C. J., said: \u201c A statute may be so inaccurately penned that its language does not express the whole meaning the Legislature had, and by construction, its sense is extended beyond its words. In such a case the indictment must contain such averments of other facts, not expressly mentioned in the statute as will bring the case within the true meaning of the statute; that is, the indictment must contain such words as ought to have been used in the statute, if the Legislature had expressed therein their precise meaning * * * * But where a statute makes a particular act an offence, and sufficiently describes it by terms having a definite and specific meaning, without specifying the means of doing the act, it is sufficient to charge the act itself without its attendant circumstances.\u201d\nThe State v. Parker, 81 N. C., 548, and State v. Allison, 90 N. C., 733, follow the ruling in the case of State v. Simpson, and for the same reason, and it will be observed that the Legislature subsequently amended the Act of 1868 by inserting the words \u201c wilfully and unlawfully \u201d before the word \u201ckill.\u201d so as to make the Act express the true intent of the Legislature. (See The Code, \u00a7 1003).\nDoes the language used in \u00a7 1045 of The Code express the true intent of the Legislature, or was there an inadvertent omission of the words \u201c unlawful and willful,\u201d which must be supplied by construction as was the case in the Act of 1868?\nThe language is precisely that of the Revised Code, Ch. 36, \u00a7 72, and the words \u201cwilfully and unlawfully\u201d are also omitted in the Revised Statutes, Ch. 36, \u00a7 64. It was no oversight of the draftsman. The language is absolute, and the act prohibited can not be lawfully done, and therefore it was not necessary to charge in the indictment that it was done \u201cunlawfully and wilfully.\u201d. If done at all it was unlawful.\nIn indictments for keeping a gaming house, at common law and similar offences, the precedents in Wharton use the word unlawful. (See Precedents 736 et seq). But, for keeping a gaming table under an Alabama statute, the form is given and the words \u201cwilfully and unlawfully\u201d are omitted. Form 755.\nWe conclude that the omission is not fatal^under our statute, and there is no error.\nAffirmed.",
        "type": "majority",
        "author": "Davis, J."
      }
    ],
    "attorneys": [
      "Attorney General, for the State.",
      "Mr. J. D. Bellamy, for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. W. H. HOWE.\nIndictment under a statute, form of \u2014 Gambling Table, \u00a7 1045, The Code \u2014 \u00a7 1003, The Code. *\n1. Ordinarily, it is sufficient to describe an 'offence in the words of the statute.\n2. A statute may be so inaccurately penned, that its language does not express the whole meaning of the Legislature, and by construction its sense is extended beyond its words. An indictment under a statute of this kind ihust contain averment of such facts as will bring the case within the true meaning of the statute. Bat. Rev., ch. 32, \u00a7 95, is an instance of such a statute.\n3. But where a statute makes a particular act au offence, and describes the act by terms having a definite and specific meaning, without specifying the means of doing the act, an indictment need only charge the act itself, without its attendant circumstances; \u00a7 1045, of The Code, is an instance of such a statute.\n4. An indictment under \u00a7 1045, of The Code, for keeping a gambling table, is good without any averment that the act was done \u201cwillfully and unlawfully,\u201d or that games of chance were xfiayecl at such table, for money or other i>roperty.\nThis was an indictment for keeping a gambling table, at which certain games of chance were played, tried before Meares, J., at January Term, 1888, of the Criminal Court of New HaNOVER. The facts appear in the opinion.\nAttorney General, for the State.\nMr. J. D. Bellamy, for the defendant."
  },
  "file_name": "0449-01",
  "first_page_order": 473,
  "last_page_order": 477
}