40 SUPREME COURT OF ARKANSAS, State v. Hester. STATE V. HESTER. INDICTMENT : Gaming. An indictment for betting at a game of "hazard or skill' is not objectionable for the disjunctive "or." APPEAL from Drew Circuit Court. HOU. JOHN M. BRADLEY, Judge.
NOVEMBER TERM, 1886. 41 State v. Hester. Dan W. Jones, Attorney-General, for appellee. The appellee was indicted under sec. 1835, Mom. Dig., for gaming. A demurrer to the indictment was sustained. The indictment followed the statute in charging the game to have been one of "hazard or skill." It is supposed. that the use of the disjunctive "or" was the objection to the indictment. Sec. 2107, Mans. Dig., says that no indictment shall be insufficient on account of any defect which "does not tend to the prejudice of the substantial . rights of .the defendant on the merits" of the case. Here tbe game played is-named, as well as the instrument with which it is played, and the appellee knew that he was charged with playing. "craps ;" and if there was an issne, evidence respecting. that game would be adduced. If it was a game of _either hazard or skill it was an offense. If the word "and" had been used instead of "or," there would have been no question as to its sufficiency. How, then, are "the. sUbstantial . righ6" of the appellee "prejUdiced" by charging either, when he could be legally charged with both, and where the prObf in .both cases would necessarily be identical ?., Tbe . indictment is certain, and is unlike cases charging playing distinct games in the alternative, as playing keno, or craps, or tiger, etc. SeO. 1840, Mans. Dig., makes the rules governing the courts in such cases different from those applicable to ordinary criminal offenses. The appellee was to answer as to one certain kind of game, and no other, and if it was one of either hazard or skill he would be guilty. COCKRILL, C. J. The appellee Was indicted , under sec. 1835, .Mans. Dig., for gaining. He was charged with playing a game known as "craps," which the indictment al-
42 SUPREME COURT OF ARKANSAS, leged was a game of "hazard or skill." A demurrer was sustained to the indictment. It is supposed that the disjunctive "or" was the objection to it. There is, however, no duplicity in the indictment. The accused, was called upon to answer to the charge of betting at a, specific game—not one of several games described in the alternative—and if that game was one of hazard or skill, and he had bet at it, the offense was corn-- plete. The judt,ment is reversed and the cause remanded, with instructions to overrule the demurrer. •
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