
    James Davis and Amos Davis v. The State of Ohio.
    1. Where it appears from the caption of an indictment, that the prosecution is carried on “in the name and by the authority of the State of Ohio,” it need not be again averred in the successive counts of the indictment ; and if the indictment contains more than one count, and a nolle prosequi is entered as to the first, the remaining counts of the indictment ■will not thereby be rendered defective for want of that averment, where it is contained in the caption.
    3. An indictment for keeping or exhibiting gaming devices cannot be sustained under the eighth section of the “ act for the prevention of gaming,” as amended April 10, 1868, without it is averred that such devices were kept or exhibited ‘ ‘ for gain; ” nor can such indictment he sustained under the second section of the “ act more effectually to prevent gambling,” as amended April 17, 1857, unless it is averred that the defendant kept or exhibited such devices “ to win or gain money or other property of value,” or that he aided, assisted, or permitted others to keep or exhibit them “ to win money or other property of value.”
    Error to the court of common pleas of Hamilton county.
    James Davis and Amos Davis, the defendants below, were indicted by the grand jury of Hamilton county. The indictment contains two counts: the first for keeping a room to be occupied for gambling, etc.; and tbe second for keeping and exhibiting gaming devices, etc.
    The caption and commencement of the indictment is as follows:
    “The State of Ohio, Hamilton county. The court of common pleas of Hamilton county, June term, in the year eighteen hundred and sixty-nine.
    “ Hamilton County, ss. :
    “ The Grcmcl Jurors of the County of Hamilton, in the name and by the authority of the State of Ohio, upon their oaths and affirmations present,” etc. Then follows the first count in the indictment.
    The second count is as follows :
    “And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further present, that the said James Davis and Amos Davis, on the twenty-eighth day of May, in the year eighteen hundred and sixty-nine, with force and arms, at the county of Hamilton aforesaid, unlawfully did keep and exhibit cards, checks, dealing boxes, gambling tables, and certain other apparatus and devices the names and more particular description of which are to the jurors aforesaid unknown; said cards, checks, dealing boxes, gambling tables, and apparatus and devices aforesaid, then and there being gambling apparatus and devices wherewith to play at games of chance, to win and gain money and other property of value, with intent that divers evil-disposed persons, whose names are to the jurors aforesaid unknown, should then and there, with and by means of the gambling apparatus and devices aforesaid, with the knowledge and consent of them, the said James Davis and Amos Davis, gamble and play at games of chance, to win and gain money and other property of value, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    The defendants, on being arraigned, pleaded not guilty to the first count, and guilty as charged in the second count of the indictment. Thereupon the court sentenced each of the defendants to six months’ imprisonment in the jail of Hamilton county, and that they pay a fine of five hundred dollars each.
    The court then entered, at the request of the prosecuting attorney, a nolle prosequi as to the first count of the indictment.
    The errors assigned relate to the sufficiency of the indictment.
    
      Thomas Powell for plaintiffs in error i
    
    The effect of the nolle prosequi to the first count of the indictment is to strike it out of the indictment. Baker v. The State, 12 Ohio St. 218; Mount v. The State, 14 Ohio St. 303; Com. v. Briggs, 7 Pick. 179; 20 Pick. 356; State v. Roe, 12 Verm. 73.
    1. The second count does not aver that the grand jurors aforesaid, “ m the name and by the cmihority of the State of Ohio” upon their oaths- and affirmations aforesaid, do further present, etc;
    A nolle prosequi having been entered' as to the-first count in the indictment in which these words appear, upon a plea of not guilty, it is therefore no part of the record of the conviction./ hence without the words, “ in the name and by -the authority of the State of Ohio,” in the second count, the same is fatally defective; (Const, of Ohio,, art. iv. sec. 20.)
    2. There is no crime Set out in the indictment, the allegaion being that the apparatus exhibited was an apparatus for gain, and not that the defendants* kept and exhibited the same for gai/n.. Section 8, of the act- of June 1,1831, S. & C-. 665 and as amended by act- of April 10,1868, 65 O. L. 84-
    In an indictment under this section of the gaming act, there must not only be an averment that the gaming device was exhibited by the defendants for gain,, but by means of such exhibition for gain* that they thereby did gain money.
    3. By the act of April 10,. 1868, the extreme penalty of the 1cm is a fine of $200, without any hnprisonment. If, the defendants- were indicted tinder the* act of April 10, 1868, the sentence is clearly erroneous. Ex parte Shaw, 7 Ohio St. 82.
    4. The indictment is not framed under sec. 2 of the act of March 1, 1846, as amended April 17, 1857. S. & C. 662. It is the object and meaning of that section to punish common gamblers. 'This indictment is insufficient under that section, because there is no averment that the defendants below kept and exhibited the instruments “ with intent to win and gain money or other property of value,” or for the purpose of winning and gaining money or other property of value. Davis v. The State, 7 Ohio, 205; Lamberton v. The State, 11 Ohio, 282, 286; Dillingham v. The State, 5 Ohio St. 283; Hall v. The State, 20 Ohio, 7; Grummond v. The State, 10 Ohio, 511; Fouts v. The State, 8 Ohio St. 114.
    5. The act under which the defendants were sentenced is applicable only to those who “ shall keep and exhibit,” etc., to win and gain money and other property of value {for themselves), or who “ shall aid, assist, or permit others to do the same.” The indictment charges no such offence.
    
      F. B. Pond, attorney-general, for the State:
    1. The caption and commencement are no part of the indictment, and therefore not part of the first count. So the nolle proseguí of the first count had nothing to do with them.
    As to the words, “ in the name and by the authority of the State of Ohio/’ see Wharton, 223.
    2. The second count of the indictment charges a violation of sec. 2 of the act of 1857. The words “ to win or gair money or other property of value,” in that section, seem to-be simply descriptive of the words “ gaming table, establishment, device, or apparatus,” and the offence consists in keeping or exhibiting them with the intent that they might be used, either by the keeper, himself or any other persons,, for gambling purposes. If this be correct, the count is sufficient. Under this section it is not necessary that the keeper himself should gamble upon the table, in order to make the-beeping and exhibition thereof a violation of the section.
    
      The act of 1857 is not superseded by the act of April 10, 1868. Sec. 8 of “ an act for the prevention of gaming” was passed June 1,1831 (S. & O. 665). Sec. 2, under which this indictment was found, was passed April 17, 1857. If this last act was clea/rly inconsistent with the 8th section of the act of 1831, that section was, by implication, repealed by it, and the act of 1868, which merely amends section 8 of the act of 1831, would not affect the act of 1857.
   Day, J.

It is claimed that the second count of the indcitment, upon which the defendants pleaded guilty, is fatally ■defective, because it is not averred therein that the present- ' ment was made “ in the name and by the authority of the State of Ohio.”

The constitution requires that “all prosecutions shall be carried on in the name, and by the authority, of the State of Ohio.” It is very clear, from the caption of the indictment, that the prosecution was carried on as required by the constitution. It does not require this to be averred in every count of the indictment. It is sufficient if it appear in the caption.

But it is claimed that the nolle 'prosequi,'entered as to the ifirst count, had the effect to annihilate that count, together with the express averment in the commencement that the presentment was “ in the name, and by the authority, of the .'State of Ohio.” It is fairly inferable from the record, that the nolle was not entered until after the plea and judgment; ibut, however that may be, all the ‘nolle signified was, that the prosecution would proceed no further on the charge «preferred in that count of the indictment. It left all parts of the indictment to stand unaffected, except that part of .the count which contains the charge of the crime therein •averred. That part containing the averment referred to properly constitutes part of the caption to the indictment, and was unaffected by the nolle. Wharton’s Am. Crim. Law, ■secs. 219, 221, 223.

The constitutional requisition under consideration is complied with, if it appear from the caption of the indictment that the prosecution was “in the name, and by the authority, of the State of Ohio,” without a formal statement thereof in each count of the indictment. 1 Whar. Am. Crim. Law, sec. 223. This was all that was required in indictments prosecuted under the common law; and it has been held in a number of the States, having constitutional provisions in this respect like that of our own, that “ a formal statement in the indictment that it was found by the authority of the State is not necessary, if it appear from the record that the prosecution was in the name of the State.” Allen v. The Commonwealth, 2 Bibb. 210; Greeson v. The State, 5 Howard's Miss. Rep. 33.

The next error alleged is, that “ there is no crime set out in the indictment.” This presents a question of more difficult solution.

It cannot have been regarded as an indictment under the 8th section of the “ act for the prevention of gaming,” as amended April 10, 1868 (65 O. L. 84); for that section provides, “ That if any person or persons shall keep or exhibit, for gain, any gaming table,” etc., shall “be fined in any sum not less than fifty, nor more than two hundred dollars,” etc. The indictment does not charge that the defendants kept the gaming devices therein specified “ for gain; ” and, moreover, the penalty adjudged by the court is much higher than that warranted by this section of the statute.

Evidently the indictment was founded upon the 2d section of the “ act more effectually to prevent gambling,” as amended April 17,1857 (S. & C. 662), which is as follows:

“Sec. 2. That if any person shall keep or exhibit any gaming table, establishment, device, or apparatus to win or gain money or other property of value, or shall aid, assist, or permit others to do the same, or if any person shall engage in gambling for a livelihood, or shall be without any fixed residence, and in the habit or practice of gambling, he shall be deemed and taken to be a common gambler, and upon conviction thereof shall be imprisoned in the county jail not less than one nor more than six months, and be fined in any sum not exceeding five hundred dollars.”

It cannot be, as bas been suggested, that the words, “ to win or gain money ” are used in this section as descriptive only of the “apparatus” named; for, if that were so, the mere keeping of gaming implements would be an offence visited with a much heavier penalty under this section, than that of keeping the same implements “for gain” under the section before mentioned.

It was evidently not the purpose of the legislature, by the enactment of 1868, to supersede that of 1857; for, while by the latter it was a penal offence for persons to keep gaming devices to gamble with themselves, by the former it was made an offence for persons to keep them to be used by others for gain to themselves.

The statute upon which this indictment was framed is highly penal. Such statutes are to be strictly construed, and cannot be extended by implication to cases not falling within their terms.

It is manifest from the language of the section on which the indictment was founded, that “ common gamblers” were the persons intended to be punished thereby. It is, therefore, made penal for a person to keep or exhibit any gaming device for the purpose of gambling therewith, or to “ aid, assist, or permit others to do the same,” that is, to aid, assist, or permit others to heej> or exhibit gaming devices for the same purpose. To keep or exhibit gaming apparatus, without any purpose of gambling therewith, or of gain.to the person keeping it, but merely for others to gamble with, may come within the spirit and reason of this section ; but, according to its plain, grammatical construction, it does not come within the language used in it. Such keeping of gaming devices would not be a keeping of them “ to win or gain money; ” nor would it be aiding, assisting, or permitting others to “ keep or exhibit ” them “ to win or gain money.” The statutory offence is, to keep or exhibit gaming implements, or to aid, assist, or permit others to keep or exhibit them, to win or gain money or other property of value. The mere permitting others to gamble with gaming implements kept by a person does not strictly come witbin. the offence described in this section of the statute.

This indictment merely charges that the defendants kept and exhibited certain gambling devices, with intent that others should gamble therewith, and by means of which they did gamble. It is not averred that the defendants kept and exhibited such devices to win or gain money or other property, or that they aided, assisted, or permitted others to keep or exhibit them for that purpose. The averments in the indictment, therefore, do not show an offence under this section of the statute.

It follows that the judgment of the court below must be reversed.

Brinkerhore, O.J., and Scott, Welch, and White, JX, concurred.  