
    Sowle v. The State.
    By section 29, 2 R. S. p. 436, if any person shall keep his building, &c., for gambling, he shall be fined, &c.; or if any person shall suffer his building to be used for gambling, he shall be fined, &c.
    
      Held, 1. That under the first branch of the section there need bo no averment in the information that gambling has actually taken place.
    2. That an information predicated upon the second branch of the section must aver that gambling was suffered, and state the names of the persons suffered to gamble, or show a valid reason for not giving them.
    
      Wednesday, January 12, 1859.
    APPEAL from the Steuben Court of Common Pleas.
   Worden, J.

This was a prosecution by information against the appellant, for suffering his building, known as his “grocery,” to be used for gaming. Trial, conviction, and judgment over a motion in arrest.

The objection to the information is, that it does not set forth the names of the persons who were suffered to gamble in the grocery, nor aver their names to be unknown, nor show any other excuse for not setting them forth.

It is settled that an information must, contain all the substantial requisites of an indictment at common law. Mount v. The State, 7 Ind. R. 654.

Such defect as is complained of was held to be fatal in an indictment for suffering gambling in a grocery, in the case of Ball v. The State, 7 Blackf. 242.

The information is predicated upon the 29th section of the act defining and punishing misdemeanors (2 R. S. p. 436), which is as follows:

“ If any person shall keep, or suffer his or her building, arbor, booth, shed, or tenement, to be used for gambling; or if any person, being the owner of any building, arbor, booth, shed, or tenement, shall rent the same to be used for gaming, he shall be fined not less than fifty, nor more than five hundred dollars,” &e.

The first branch of the above section contemplates two offenses — first, the keeping of a building, &c., for gambling; and second, suffering gambling in his building, &c.

It may be properly paraphrased thus: If any person shall keep his or her budding, &c., for gambling, he shall be fined, &c., or if any person shall suffer his or her building, &c., to be used for gambling, he shall be fined, &c.

Under the first branch of the section, for keeping a building, &c., for gambling, there need be no averment that gambling had actually taken place. The State v. Miller, 5 Blackf. 502. The Court, in that case, say: “The offense created by the statute is, the keeping or renting a room, &c., with the intention and purpose that gambling shall be carried on in it. The intention is a matter of proof; and if that can be established, it is immaterial whether the prohibited establishment shall find customers or not.” In such case, it being unnecessary to allege that any gambling was done in the building, it is of course not necessary to set forth the names of any persons who were permitted to gamble. This accords with McAlpin v. The State, 3 Ind. R. 567, and Dormer v. The State, 2 id. 308, both of which were indictments for keeping a gaming house. In the latter case, a question was made as to duplicity — the indictment charging that the defendant kept, and suffered his house to be used, for gaming, &c. The Court held that the indictment was not double, which was undoubtedly a coixeet ruling, for the obvious reason that, if the defendant kept his house for gambling, it could neither add to, nor diminish from the offense, that he suffered it to be used for the purpose for which it was kept. The latter was merged in the former.

A. Ellison, for the appellant.

But the case is entirely different where the offense charged is suffering gambling in a building (not averred to be kept for that purpose), as in this case. In such case, it being necessary to aver that gambling was suffered, it follows, from general principles of criminal pleading, that the names of the persons suffered to gamble should be stated, or a valid reason given for not stating them. The case falls clearly within Ball v. The State, supra, by which we must be governed.

We are of opinion that the motion in arrest should have prevailed.

Per Curiam. — The judgment is reversed. Cause remanded for further proceedings not inconsistent with this opinion.  