
    Samuel Strawhern and John P. Grizzle v. The State of Mississippi.
    1. Criminal law : indictment: joinder op offences. — It is well settled, both in England and in the United States, that distinct offences, of the same degree, may be joined in the same indictment; but the court m'ay, in its discretion, order the indictment to be quashed, lest the prisoner should be embarrassed in his defence, or prejudiced in his challenges to the jury. See Wash v. The State, 14 S. & M. 120; Sarah v. The State, 28 Miss. R. 267; Kane v. The People, 8 Wend. 203; 12 lb. 425; Chit. C. L. 253 ; Bex v. Strange, 34 E. C. L. R. 341; Whart. C. L. 149.
    2. Same : same. — Where an indictment contains two counts, each charging distinct offences, the prisoner has no right to demand that the prosecutor shall elect upon "which count he will proceed; but it is a matter submitted to the sound discretion of the court. 30 E. C. L. R. 341; 12 Wend. 425 ; 22 Pick. 1; 28 Miss. R. 267.
    3. Same: witness: wees co-defendant competent. — Where two are jointly indicted, one of them, after conviction (if not rendered infamous thereby), is a competent witness for the defence on the trial of his co-defendant; and where the punishment on conviction is a fine, it is not necessary, to render him competent, that the fine should be paid.
    4. Same : same. — If an indictment against several defendants, charge them with the commission of separate and distinct offences, and not with the joint commission of the same offence, it seems that the defendants are competent witnesses for each other, before acquittal or conviction.
    5. Same : char&e must be proven as laid. — The charge in an indictment must be proven as laid; and hence, if the charge be that the defendant played at a game of hazard, “ for money,” it must be shown that he was either directly or indirectly interested in the money wagered, of he cannot be convicted.
    ERROR to the Circuit Court of Monroe county. Hon. Joel M. Acker, judge.
    The case is very fully stated in the opinion of the court.
    
      Rogers and Beekett, for plaintiffs in error.
    The defendants insist that both James Marshall and William Marshall, were competent witnesses to prove the innocence of Grizzle and Strawhern, and that the court below erred in ruling out their testimony, and excluding them as witnesses. Jones v. The State of Georgia, 1 Kelly’s Georgia R. 610; 1 Greenleaf on Evidence, § 379.
    The indictment was against James Marshall, William Marshall, John P. Grizzle, and Samuel A. Strawhern. Grizzle and Straw-hern alone were on their trial. William Marshall, before the trial, had plead guilty, and was fined by the court. He, of course, then, had no interest in the result of this trial. This important question was put to him: “ Did you ever play at a game called ninepins, or pool, with James Marshall, John P. Grizzle, and Samuel A. Straw-hern?” The court decided that William Marshall was not a competent witness for the defendants, Grizzle and Strawhern, and ruled out the question. The defendants also offered to introduce James Marshall, to whom the district attorney also objected, which objection was sustained by the court. The doctrine is now clearly set-tied, that although parties may be jointly indicted, if they are not on trial together they may be, and are, competent witnesses for or against each other.
    We also insist that the court below, erred in refusing all of the charges asked by defendants. The defendants were indicted for playing for money; ancl the first charge was predicated on the position, that under the law the parties were not guilty, unless they were interested either directly or indirectly in the money bet. If the defendants played at either of the games in the indictment mentioned, and did not bet, then, in that event, they did not play for money. If the charge asked is not the law, then every party who plays for amusement, if any other persons around bet upon the game, the parties playing are. the guilty ones. Our law evidently intended, and intends, to punish those, and those only, who bet and play for money.
    The second charge is predicated upon the point, that it was necessary to prove the charge as laid in the bill of indictment, before the defendants could be convicted. The defendants are indicted for a certain offence, and that is, playing at certain games, for money, with James Marshall and William Marshall. Now, either of the four parties indicted may have played, at other times, for money; but proof that Strawhern, or Strawhern and Grizzle, or James Marshall, or William Marshall, played separately at either of the games for money, did not make the offence specified in the indictment. This offence must be made out, by proof that all four of the parties charged, played together at the game, for money. We admit that under the statute, Revised Code, 598, article 148, the district attorney could not be confined to proof of a single violation of the law by a defendant; but when, in the indictment, the State does specify the offence, by charging that several parties played together, he cannot convict upon the proof that one party played. He indicted Grizzle and Strawhern for playing with the Marshalls; that offence was identified as being the one at which all four played together at; then he could not convict either Strawhern or Grizzle for that offence, by proof constituting another offence.
    The witness for the State expressly stated that he never saw James Marshall, William Marshall, John P. Grizzle, and Samuel Strawhern playing together, at a game called ninepins, or pool.
    
      So the court will at once see that the charges asked by defendants were applicable.
    
      T. J. Wharton, attorney-general, for the State.
    The statutes punishing unlawful gaming are declared to be remedial, and to be liberally construed for the suppression of the evil.
    In the case of Mount v. The State, 7 S. & M. 278-9, this court held, that upon an indictment against one for permitting a faro table to be exhibited in a house occupied by him, it is no defence that he rented the rooms without knowing that the tenant would use them for such purpose. He is still guilty, as the tenant would also be.
    Each party is charged as a principal. Though all four of the persons indicted may not have played in the same game, and against each other, yet, if the plaintiffs in error played with and against each other for money, still the conviction should be upheld. The other two charged in the indictment pleaded guilty, which was an admission on their part, that the indictment was “ a true bill.” They were no longer parties before the court. The indictment then stood as though it had been originally found against the plaintiffs in error only, and the proof of the only witness is direct, that he had seen them play ninepins and pool, when money was up, within twelve months before the date of the indictment. It was quite immaterial whether they wagered any money on the result, or they played a game for others to wager upon. They were participants in the crime. If a party engages another to deal faro for him, the latter being employed at a stated salary, and having no interest in the game, would he not be indictable still ?
    I take it as proved, that the plaintiffs in error did play at ninepins and pool, and that there was money wagered on the result, and that this was within twelve months before indictment found.
    If it be a matter of any importance to show whether the money was wagered by them, or by others not engaged in the game, the onus did not rest on the State.
    On the point of the exclusion of the evidence of the two Mar-shalls, who were jointly indicted, the action of the court was based on the ground of their supposed incompetency, being charged as accomplices. On that point, there is some diversity of authority.
    
      “ One of several persons indicted, although he have pleaded and defended separately, is not a competent witness for his co-defendant, unless immediately acquitted by a jury; and the same rule applies to accessories.” Whart. Or. Law, 308.
    Greenleaf says : “ If he is convicted, and the punishment is by fine only, he will be admitted for the others, if he has paid the fine.” 1 Greenl. Ev. 449, § 379; Russ, on Or. 597-600; 1 Lead. Or. Cas. 14. There was no evidence that either of the Marshalls had paid the fine imposed, at the time they were tendered as witnesses.
    One defendant in an indictment cannot, until finally discharged, be a witness for another, and that whether the trial be joint or separate ; and where the wife of one is not permitted to testify for the others, on a joint trial, she will not be received for them, although her husband he not then on trial. State v. Smith, 2 Ind. 402. The contrary rule prevails in Tennessee and Missouri. 2 Humph. R. 99 ; 6 Miss. 1.
    The inclination of my own mind is in favor of the rule in the two latter States. I, however, submit the point for the determination of your honors.
   Smith, C. J.,

delivered the opinion of the court.

This was a conviction under the statute against gaming. The indictment contained two counts. The first charged “ that William Marshall, James Marshall, Samuel Strawhern, and John P. Grizzle, late,” &c., “did unlawfully play at a game commonly called ‘tenpins,’ for money, and for one bank-note, then and there of the value of five dollars,” &c. The second charged the same parties, in the same form, with unlawfully playing at a certain game called “ pool,” for money, and for a bank-bill of the value of one dollar. The defendant, William Marshall, pleaded guilty, and was fined. James Marshall was not tried; but a trial was had between the State and the plaintiffs in error, w'hich resulted in their conviction. A motion for a new trial was thereupon entered, which was overruled, and the defendants excepted, and prosecuted their writ of error.

Before proceeding to trial, the defendants moved to quash the indictment, upon the ground that it charged two distinct offences. Which motion being overruled, the defendants moved to compel the district attorney to elect upon which count of the indictment the trial should proceed. This motion was also overruled, and the action of the court upon it, and the preceding motion, is assigned for error.

On the trial, a witness, offered for the prosecution, testified, “ that within twelve months before the finding of the bill of indictment in this cause, he had seen both the defendants, Strawhern and Grizzle, roll ninepins, and play at the game called pool, when money was up.” On cross-examination, this witness stated, that he had never, to his recollection, seen William Marshall, James Marshall, Samuel Strawhern, and John P. Grizzle, play together at a game called ninepins or pool; nor did he ever see either of the defendants play together, to the best of his recollection, at either of the above-mentioned games; nor did he remember ever to have seen either of the defendants put up any money at either of the above games: but he saw money staked when they were playing.

The testimony of this witness was all the evidence offered in behalf of the pi’osecution. The defendants then tendered James Marshall; one of the parties jointly indicted with them, but who was not on trial; as a witness; but he was excluded, upon the ground that he was incompetent. William Marshall, who had pleaded guilty to the indictment, and was fined, was also offered as a witness, by the defendants, and was likewise, for the same reason, excluded. The defendants excepted, and the ruling of the court, in each instance, is assigned for error.

On the evidence before the jury, as above detailed, the court, at the instance of the district attorney, charged, amongst other instructions given to the jury, “ that it is not necessary that the defendants, or either of them, should have bet anything on the game at which the money was staked; all who played are guilty and refused, upon the application of the defendants, to instruct,

1st. “That before (the jury) can find the defendants guilty under this indictment, (they) must believe that the defendants played at the game of tenpins or pool for money, in which they were interested, either directly or indirectly.”
2d. “ That unless the jury believe that the defendants unlawfully played at a game of tenpins or pool, together with William ' Marshall and James Marshall, for money, they will acquit the defendants.”
And 3d. “ That, unless the jury believe, from the evidence, that defendants bet or wagered money on the game, or were interested in the money, they will acquit the defendants.”

To the granting of the instruction for the prosecution, and the refusal of the court to charge, as requested by them, the defendants excepted, and assign, also, this action of the court for error.

We will proceed to notice these several exceptions, in the order in which we have stated them.

1. It is settled in this court, and by the courts in England, and generally by the courts in this country, that in point of law there is no objection to the insertion of several distinct felonies of the same degree in the same indictment, against the same offender. Wash v. The State, 14 S. & M. 120; Sarah v. The State, 28 Miss. R. 267; Kane v. The People, 8 Wend. 203; 12 Ib. 425; Chitt. Cr. L. 253; King v. Strange, 34 Com. L. R. 341; Whar. Am. Cr. L. 149. The practice, however, of joining distinct felonies in the "same indictment, is not to be commended; and although the joinder of distinct offences in the same indictment constitutes no legal ground for quashing the indictment; if objection, on that ground, be made before plea, the court, at its discretion, may order the indictment to be quashed, lest it should embarrass the prisoner in his defence, or prejudice him in his challenge to the jury. The reasons are manifest, why a more stringent rule should not be applied to prosecutions for misdemeanors. This objection is, therefore, untenable.

2. There was no error in the refusal of the court, to compel the prosecuting attorney to elect upon which count of the indictment he would proceed. The answer given to the preceding objection is entirely applicable to this. It was a matter submitted to the sound discretion of the court. 34 Com. L. R. 341; 12 Wend. 425; 22 Pick. 1; 28 Miss R. 267. And there is nothing whatever in the record, which tends to show that the defendants were, in any wise, prejudiced by this particular action of the court.

3. The third exception, in our opinion, is well taken. The witness, William Marshall, who was tendered by the defendants, and excluded from testifying by the court, had pleaded guilty to the indictment, and was fined. It is true that it does not appear that he had paid the fine. But this fact can have no effect upon his competency as a witness for the defence. The prosecution as to him was at an end. He could in no conceivable way be affected by the result of the trial then pending; and hence could have no motive for swearing falsely, in order to produce an acquittal of the parties then on trial. As he was not rendered infamous and incompetent by his confession and the sentence of the court, there seems to be no sufficient reason, founded on principle, for his exclusion. This view seems to be sustained by authority. (Cases cited in Am. Cr. L. 303.) Jones v. The State of Georgia, 1 Kelly, 610.

There is an additional reason why this party should have been permitted to testify. The parties indicted were not charged with a joint commission of the offences described in the indictment. They were not charged to have bet money with each other, or to have played with each other for money, at the games mentioned in the indictment. The charges are, 1. That the said parties, at a certain time and place, played for money, at the game of tenpins; and, 2. That they played, at a stated time and place, for money, at the game of pool.

This was manifestly the construction adopted by the circuit judge, in refusing the second instruction requested by the defendants. For, although the statute declares that, in prosecutions for gaming, “ it shall be sufficient to charge the general name or description of the game, at which the defendant may have played, without setting forth or describing, with, or against whom, he may have bet or played,” it would nevertheless, have been clearly erroneous to have refused the instruction, if under his construction of the indictment, the defendants were charged with the joint commission of the alleged offences. Adopting, then, the construction which it seems probable the court below applied to the indictment, the parties were, in effect, severally charged with the commission of separate and distinct misdemeanors, and not with the joint commission of the same offences. Hence, under the indictment, and in conformity with the statute, it was not necessary to prove that the persons indicted played with each other for money, or bet money with each other, at the games designated in the indictment, but that all that was required to authorize a conviction, was the adduction of legal proof that each or either of them played for, or bet money, on the games described, with A. B. C. or D. The question here is not as to the sufficiency or legality of the indictment. That is a question which cannot now be examined; but the inquiry is in relation to its construction. And upon that construction, as the offered witness was charged with an offence separate and distinct from the offences charged against the other parties indicted, upon no principle of reason or authority, should he have been excluded, especially after having'pleaded guilty, and received sentence.

4. These observations are sufficient to show that there was no error in the refusal of the defendants’ second instruction.

5. The last exception applies to the third charge given in behalf of the prosecution, and to the refusal of the judge to grant the first and third charges requested by the defendants. The action of the court upon these respective charges, in effect, lays down the rule, that persons who play “tenpins” or “pool,” upon which money is bet or wagered, by third parties or bystanders, but who do not, themselves, either directly or indirectly, bet or wager money on the game so played, is nevertheless guilty of a violation of the statute against gaming.

It is scarcely necessary to say, that the court in announcing this proposition misconstrued the statute against gaming. There are, doubtless, many ways, beside that of actually betting or wagering, in which a party may be guilty of a violation of the statute. But here the parties were charged with betting money and a valuable article on the games specified, and not with having encouraged gaming, or with any act which the statute makes criminal. It was hence essential, before a conviction could be had, that legal proof should have been adduced, establishing the facts charged; that is, that they had wagered or bet money, or something of value, either directly or indirectly ; or that they had in some way an interest in the game, and would, by the result, either gain or lose. Under the rule as laid down, a person who not only never intended to violate the statute, but who, in point of fact, never had, might be convicted and punished.

Judgment reversed and cause remanded.  