People v. Plath

The defendant was charged by indictment presented July 25, 1912, with violating each and all of the numerous provisions of section 337a of the Penal Code. He interposed a demurrer on the grounds, substantially: 1. That the indictment does not conform, to the provisions of sections 950, 951, and 952 of the Penal Code; and, 2. That more than one offense is improperly charged therein. The demurrer was treated in the lower court as sufficiently presenting the objections stated, and in view of the action of the trial court should so be regarded here. The trial court sustained the demurrer, and the district attorney having declined to amend, judgment of dismissal was given. This is an appeal by the people from such judgment.

Section 337a, relating to gambling by pool-selling, bookmaking, bets, and wagers, substantially declares that any person who does any act specified in any of six separate and

The indictment before us charged defendant in the conjunctive and in the language of the statute with having “on or about the first day of July,” 1912, at the city and county

As the indictment is drawn, there is no necessary connection between any of the matters so separately charged, and under well settled rules it would only be necessary for the prosecution to prove, in order to obtain a conviction, that at some time prior to the finding of the indictment, the defendant did any one of the things he was alleged to have done. For instance, it would be sufficient to show that at some time prior to the presentation of the indictment, somewhere in the city and county of San Francisco, he had either made or accepted a single bet upon the result of a horse race; or, that, at some time prior to said date, being an occupant of the place known as No. 53 Third Street in said city and county, he had willfully permitted the same to be used for receiving money bet and wagered upon the result of a horse race; or that at some time prior to that date, at any place in San Francisco, he had engaged in pool-selling and bookmaking; or that, at any time prior to said date, he had occupied the premises known as No. 53 Third Street, with books, etc., for the purpose of recording and registering bets, etc.; and so on.

The district court of appeal in deciding this case said that this “blanket form of pleading” is “not to be commended,” but was of the opinion that it was not “fatally defective.” Of course the indictment was not fatally defective in the sense that it would be held insufficient to sustain a conviction in the absence of timely objection by demurrer; and it may be that even in the face of the objections urged, if the demurrer had been overruled and a trial had, resulting in a conviction,

We are of the opinion that the situation in this case is not one where it may fairly be held that we have a statute enumerating ‘ ‘ a series of acts either of which separately or all together constitute the offense.” If our conclusion in this regard be correct, the rule that “all the said acts may be charged in a single count, for the reason that notwithstanding each act may, by itself, constitute the offense, all of them together do no more, and likewise constitute the one and the same offense” is, of course, not applicable. We have here a statute, as was said in Ex parte Roberts, 157 Cal. 472 , [ 108 Pac. 315 ], where “the several offenses therein described are apparently as distinct and independent of each other as if they had been enacted in separate sections. ’ ’ Aside from the fact that they all relate to pool-selling or bookmaking, or to bets or wagers, .and that the punishment prescribed is the same for each offense, there is no necessary connection between them. Take, for instance, subdivisions 1 and 6 of the section. There is, of course, a plain distinction between “pool-selling or bookmaking, ’ ’ and the ordinary bet or wager between two individuals upon the result, say, of a horse race or a baseball game. Subdivision 1 makes the engaging in pool-selling or bookmaking a crime, and subdivision 6 apparently makes the ordinary bet or wager above referred to a crime. Obviously these are different and distinct offenses. It is clear, too, in view of this, that the section is not confined exclusively, as claimed by appellant, to “gambling by pool-selling or bookmaking,” or was intended to include only the activities embraced in that occupation. Subdivision 5, as has been noted, covers the case of an owner, lessee, or occupant of any place who simply permits such place to be used or occupied for certain uses designated in certain preceding subdivisions, and makes such act on his part a crime. This subdivision, of course, was intended to cover simply the case of one who permits another to use a place of which he is the owner, lessee, or occupant, for any of such prohibited purposes, and defines an offense entirely different from and in no way included in

The rule contended for by appellants could reasonably be invoked as to certain matters contained in a single subdivision, as, for instance, it might be properly charged in a single count in one indictment or information under subdivision 4 that the defendant “recorded and registered a bet,” etc., or, under subdivision 3, that he “received, held and forwarded” money, etc., and so on. But we do not think it can. fairly be held to be applicable to such a situation as we have here, or that the authorities relied on, when carefully considered, sustain the claim of appellant. The vagrancy statute (Pen. Code, sec. 647), which is relied on by appellant in this connection, does undertake to define a particular offense, to wit: “Vagrancy,” declaring in eleven different subdivisions what acts shall constitute one a “vagrant,” and render him liable to the penalty therein prescribed. Even under this statute it has never been held, so far as we can find, that a complaint charging a defendant with each and all of the acts specified in the eleven subdivisions would not be subject to demurrer for failure to comply with the provisions of sections 950, 951, and 952 of the Penal Code. (See in this connection People v. Lee, 107 Cal. 480 , [ 40 Pac. 754 ].) The case of Ex parte McCarthy, 72 Cal. 384 , [ 14 Pac. 96 ], relied on in this connection, where the complaint charged the matters contained in two of the subdivisions of the vagrancy section, was a habeas corpus proceeding, and inasmuch as the complaint did certainly state facts constituting a public offense within the jurisdiction of the court, it was not a nullity. In People v. Gusti, 113 Cal. 177 , [ 45 Pac. 263 ], the.defendant was charged with furnish

-There can be no question that such an indictment as the one before us is manifestly unfair to one accused of crime. It was said in People v. Lee, 107 Cal. 480 , [ 40 Pac. 755 ], that while many offenses may now be charged in the strict language of the statute, a defendant is still entitled to be apprised with reasonable certainty of the nature and particulars of the crime charged against him, that he may prepare his defense, and upon acquittal or conviction, plead 'his jeopardy against further prosecution. And the court said: “Where, as under some of our statutes, several sepárate, different, and distinct acts are enumerated, the commission of each or any of which constitutes the crime, it is not sufficient to charge the defendant with being guilty of the crime without further charging the’ commission of the particular act or acts «upon which the crime is based. A person, for example, charged with vagrancy is of right entitled to know whether he is called upon to meet the charge as being a common drunkard, or as being a dissolute associate of known thieves, or as being a healthy beggar, in short, as belonging to what class, or as having habitually committed what act to lay him liable as a ‘vagrom man.’ So here the statute enumerates different acts, each one constituting a specific offense, though the same crime, and the defendant, to make his defense, is entitled to know what wrong it is charged he has done.” So far as the indictment in th¿ case at bar is concerned, the defendant was left in absolute ignorance as to which of the very many acts charged against him therein, he was called upon to defend. Whether it was proposed to attempt to show that he engaged in bookmaking or pool-selling, or that at some time prior to the finding of the indictment he at some place in San Francisco made a bet or wager on a horse race, or that he was the owner, etc., of certain designated premises and permitted others to use the same for certain prohibited purposes, he could not ascertain' therefrom. The proof sufficient to warrant an indictment should certainly enable those presenting it to set forth with reasonable certainty the precise charge against the defendant.

We are satisfied that the trial court was warranted in concluding that many offenses were charged in the indictment,

The judgment appealed from is affirmed.

Sloss, J., Lorigan, J., Shaw, J., Henshaw, J., and Melvin, J., concurred.