OF THE STATE OF ARKASAS. 363 Term, 1857] Medlock vs. The State. MEDLOCK VS. THE STATE. The day, on wiliob nftenee, °barged in an indictment, is alleged to have been committed, is not, in general, material; and the facts charged may be proved to have occurred upon any other day previous to the finding of the indictment: Where the proof is, that the offence was committed during the term of the Court at which the indictment was found—neither the precise day on which the offence was committed, nor that on which the indictment was found, appearing in the record—this Court will not set aside the verdict of the jury. who are the judges of the weight or preponderance of testimony, because the proof does not clearly show that the offence was committed before indictment found. Where an indictment for gaming charges the offence to consist in betting money, it is not necessary to prove that the defendant bet the precise amonnt alleged in the indictment—proof of the betting of money is sufficient. It is not necessary, under the act of 22a1 January, 1855, in an indictment for betting on any game of hazard or skill, to state the name of the person or persons with whom the game was played. Though it is a rule in criminal pleading that the facts constituting the offence should he stated with certainty and precision, it is sufficient, ordinarily, in indictments for offences created by statute, to charge the offence in the \voids of the statute: Appcal from tlo, Circuit Court of _Bradley county: The Han, THE011onic F. SORREILS, Circuit Judge. Watkins Gallagher for the appellant. 17 11r, Attorney General Jolmson for the State, Mr, Justicc ILinly delivered the opinion of the Court: At the Septembei terra of the Bradley Circuit Court, 1855, the appellant was indicted for unlawfully betting the sum of twenty-five cents, in money, On the 15th September, 1855, in the county of Bradley, "rrpon a pertain game of hazard, to wit: a g:nrne at cards Polled draw poerp,"
:164 CASES IN 'ffiE SUPREME COURT Medlock vs, The State. [January At the Match term, 1856, the appellant was arraigned upon this indictment, plc ailed not guilty, was tried hy a jury, convicted mi-td fined, Judgment accordingly, It app(ars from the record that there was hut one witness, who testified in the case. His testimony was, in effect, that be knew appellant, had seen him during the session of the Circuit Court for that county, in September, 1855—being the Septem-ber terra for that y ear—play at a game of cards, in said enmity , with himself, the witness, and several other persons—that the game thus played at was called draw pocre—that several ildilars were then and there bet on said game, and that said , game of cards was a game of hazard. The appellant aSked the Court to instruct the jury LIS follow6. -. "That unless the State shall have proved that the defendant het the precise amount of inuiviy alleged in the indictment, the jury will find for the defendant." 2. "That unless the state shall have proved the identical persons, by and between whom said game of cards was played. as alleged in the indictment, the jury will find for the defendant." Which the Court refused and the appellant excepted. After the verdict had been rendered the appellant filed his motion for a new trial, and in arrest of judgment. The grounds of the motion for a new trial are: 1. "The verdict is contrary to the law and evidence, and the instructions of the Court. ". Because the Court refused to give the instructions asked for by defendant. 3. Because the proof does not sustain the allegations in the indictment." The grounds of the motion in arrest are: 1. "Because the indictment does not allege with, and by whom the game therein mentioned was played. 2. Because the indictment does not charge the offence therein attempted to be charged, with sufficient legal certainty. 3. Because said indictment does not charge any offence known to the laws of the State of Arkansas."
Or THE STATE Or ARKANSAS. 365 Term, 1857] Medlock vs: The State, These motions were severally overruled by the Conrt, and the appellant excepted, setting out in his bill the evidence and instructions proposed, a e nhove stated, and the action of the Court below with respect to the motions for new trial, and in arrest. Medleck appealed, MA assigns for error: 1: The overruling his motion for a new trial. 2, The overruling his motion in arrest. WP will proceed to consider and determine these questions. I. In determining the first assignment, we propose, as it questions the overruling the appellant's motion for a new trial, to take up each ground relied r■11 in alp mntion, and dispose of them sr riatiin. 1. In considering this i.gound we will asSume, for the time being. that the indictment is sufficient in law, reserving the consideration in respect to its legal sufficiency, until we shall come to dPtermine tlie legal propositions—including that embraced in the motion in arrest. Therefore, is the verdret rendered in this ease contrary to the evidence ? The indictment charges the betting to have occurred on the 15th Sept, 1855. The proof is, that it occurred at, or during the session of the Bradley Circuit Court, September term, 1855. The counsel for the appellant insists that this Court judicially knows that the September term of the Bradley Circuit Court for 1855, commenced on the 17th September, and argues from this that the betting in proof does not sustain the betting charged against the appellant in the indictment Conceding that the betting established by the proof, occurred on the 17th September, 1855, does this fact in legal contemplation make or constitute a variance between the proof and the indictment ? WP think most clearly not. The day and year on whicn facts are stated in the indictment or other pleading to have occurred, are not, in general, material; and the facts may be proved to have occurred upon any other day previous to the preferring of the indictment. See Archb. Cr. Pl. 94, 40. Whart, Am. Cr. L. 220. 1 Phil. Ev. 203:
366 CAtnE■S IN TIM SUPRMUE COURT Medlock vs. The State [January The transcript before us does not show on what precise day in the September term, 1855, of the Bradley Circuit Court the indietira nt was preferred by the grand jury and filed in the Court. The record pia ' fusses to contain all the evidence upon which the jury formd their verdict_ There is no positive evidence npon the record as to the fact whether the betting proved occurred before or after the indictment was preferred. The ' . wo . of of the fact that the betting was before the finding of the indictment, as we have already shown, was essentially material_ The record fails to state whether the Court did or did not instruct the jury upon the law of the ease. The presumption is, that if the Com t gave the jury any instructions, and they are nirt sliow,n, that the instructions given were such aS the law warranted and authorized, That the jury were told that if they should believe from the evidence that the betting proved, was after the indictment was preferred they should acquit-- the fact of betting being proved ; the cAiremes of tinie within which i he proof show s it occurreil being also in proof. There is no evidence on the record of the precise day or time within the Septembel fel in, 1855, on, or at which the indictment was prefei I d. The jilry could have a.s well inferred or presumed from these facts that the indictment was not retnrned into Court until the last moment of its duration at the September term, 1855us limy could that the betting did not occur until itter the finding of the bill, They were the: exclusive jedges of the weight or prepo]Iderance of testiun_11, ll it was within their province also to ‘ lraw legitimate inferet c_s from facts already proIco, IitHrig into ei alsideration as well the manner of the witnesses deposing before them, as the substance or matter deposed to. This Court will not award a new trial in any case. crim in al or ii NAL it there is enough testimony to support the verdict, so that it cannot he said to be without evidence in any essential ingredient ill the finding. This is the settled and Uniform doctrine and practice of this Court. See Bevens vs. The State, fl Eng. R. 463. Stanton i's. The State 13 Ark. H. 317: In the case before us, there is not a total want of testimony
OE '111E StATE OF Al:KANSAS. 3137 Terra. 1551] Medi:I:wk. vs: The State: to support the verdict, but, on the contrary, the e‘ idence i ,1-1- 111OSi '01112111SPC12 upon every material point except the one just noticed. We therefore hold, that the Court below did not en in merniling the motion for a new trial on the first ground. Did the Court ell in refusing to give the mstruetions aslied for liv t he appellant ? We think most clearly not 1st. Beeansc the charge in th,, ind ictment was tor hurter nione:‘ , twenty-five cents and the proof showed that money was bet; brit to the amount of doll,irs This is sufficient 211 Eeeause this mai sSillnieS filet to eist whicli is unwarranted by the record. The indictment iloes not charge the betting with any eine. The Court did not err therefore in refusing the new trial on that graund. 1. Are the allegations in the indictment snstained by the proof. We have already ii movered this questical in the affirmative: This disposes of the entire motion for a new trial: and upon the uliole wc hold that the Court below did not err in over-the neit i iin for a 111'AV trial. We will now procivil to consider the seeorel assignment of errors arising npon the motion in arrest of indignierit. 1 Was it mvessarv that the indict nu mit hould have id-lty , ed the i iiirsons with whom the game was played ? The indietment at liar was evidentl y framed under the act of 22(11 -an-nary, 1855, which us 'See: 1. That if any person shall lii riilty of hetting air1/4 money on other valuable thing, MI anv ga-me of -hazard or Skill, lie slial I, lin cow% ietion, lie fined a S prescribed in scetiori ti, nrticle ft chapter 51. Title, Criminal T,aw, of the Digest of the Statutes of Ail,ansas "Sec, 2. That ill prosecuting under the precedin g section. it is suffiennt for the indictment to ebarge that the defendant bet mcale, or 011101 valuahle ttring on a game of hazard Or W111110111 ,S ; tati in with whom the game was :played_ is manifest, beyond all doubt, that under this act it wrIS It utit uiceesa v the Ind ictment should specify or state the name
368 CASES IN THE SUPREME COURT Medina vs. The State. [January of the person or persons with whom the game was played. We therefore hold that the Court did not err in refusing to arrest the judgment for this cause. Is the offence in the indictment, in this instance, charged with sufficient legal certainty ? It is an universal rule in criminal pleading, that not only must all the facts and circumstances, which constitute the offence, be stated ; but they must be stated with such certainty and percision, that the defendant may be enabled to judge whether they constitute an indictable offence or not, in order that he may demur, or plead to the indictment accordingl y — that be may be enabled to determine the species of offence they constitute, in order that he may prepare his defence advisedly— that he may be enabled to plead a conviction or acquittal, upon this indictment, in bar of another prosecution for the same offence—and that there may be no doubt as to the judgment which should be given if the defendant be convicted. See Archb. Cr. Pl. 43. Rex vs. Horne, Cowp. 675. But it is sufficient, ordinarily, in indictments for offences created by statute, to charge the offence in the words of the statute, and if this is done, the verdict under our statute, which is very similar to the English statute of 7 Geo. 4, ch. 64, see. 24, will not be disturbed. See Dig. ch. 52, see. 98, p. 422. Arehb. Cr. Pl. 51. In the case before us, the eharge against the appellant, in the indictment, is in the very words of the statute. We think it, therefore, substantially sufficient, at least after verdict, and hold, consequently, that the Court below did not err in refusing to arrest the judgnient on this ground. 3. Does the indictment charge an offence against the appellant known to the laws of this State ? This question we have virtually answered, when considering and disposing of the second ground assigned in the motion for arrest. There is no error in the proceedings of the Court below, refusing to arrest the judgment on this ground.
OF THE STATE OF ARKANSAS. 369 Term, 1857] Having thus considered and disposed of all the questions of law raised by the record, and finding no error therein the judgment of the Circuit Court of Bradley county rendered in this cause, is, in all things, affirmed.
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