Opinion
02-12-1917
STATE v. SATTERFIELD et al.
William W. Satterfield and James Julian were indicted for keeping a gaming table. On motion to quash a count charging Julian as an accomplice. Motion granted.
Percy Warren Green, Deputy Atty. Gen., for the State. Phillip L. Garrett, of Wilmington, for the accused Julian.
William W. Satterfield, as principal, and James Julian as an accomplice, were indicted for keeping a gaming table. On motion to quash the fourth count in the indictment, charging Julian as an accomplice. Motion granted.
Revised Code 1915, § 3568, provides:
"Whoever shall keep or exhibit a gaining table, faro bank, sweat cloth, roulet table, or other device under any denomination, at which cards, dice or any other game of chance is played for money, or other thing of value, * * * shall be deemed guilty," etc.
The fourth count in the indictment charges that James Julian, "did knowingly and feloniously abet, procure, command and counsel the said abovementioned William W. Satterfield to do and commit the said misdemeanor and keeping a gaining table and being concerned in interest in exhibiting the gaming table, in manner and form aforesaid, against," etc.
Counsel for the alleged accomplice moved to quash the count (1) because of duplicity, and (2) because the misdemeanor charged is alleged to have been feloniously done; and in support of the latter ground relied upon, State v. Darrah, 1 Houst. Crim. Cas. 112.
The Deputy Attorney General insisted that the count was not duplicitous but conceded that it was otherwise defective, under the decision in the case of State v. Boggs, 4 Pa. 95, 53 Atl. 360.
BOYCE, J., delivering the opinion of the court:
The several acts mentioned in the statute, and indictable as distinct offenses, are connected with the same general offense, and subject to the same punishment, and the fact that the count charges that the offense was committed in more than one way, it does not, under a statute like the one in question, make the count duplicitous.
Unnecessary words in an indictment, otherwise sufficient, should not be permitted to vitiate the indictment; but such words should be rejected as surplusage. In case a misdemeanor is alleged to have been done feloniously, the allegation is surplusage, contrary to State v. Darrah, Houst. Cr. Cas. 112, and should be rejected as such, if the indictment, or count, is otherwise good. Com. v. Squire, 1 Metc. (Mass.) 258; State v. Edwards, 90 N. C. 710; State v. Sparks, 78 Ind. 166.
The fourth count is defective for the reason conceded in State v. Boggs, 4 Pa. 95, 53 Atl. 360, and is quashed.