urged on the motion to discharge the rule, its of this case, we cannot now do much more and dismiss the petition, and the authorities than announce the conclusions which the then cited are relied upon. court has reached. Our attention is directed to errors and mistakes in the list filed as set out in the return, and it is urged that the Department of Elections in the exercise of its discretion had a right to disregard the entire list, and to make the appointments independently thereof. That the duties imposed under the statute are judicial and not ministerial. [5] First, we deem it important to say that in the selection of persons for registration officers too great care cannot be exercised. Efficient, reasonable and fair-minded men should be appointed-men who will discharge their official duties faithfully without bias or prejudice. An error in residence or disqualification as a voter in a particular dis[4] It is further urged that the provision trict should not prevent an appointment from of the statute requiring "that the total num- the rest of the list. for such district if comber of registration officers in each representa-posed of proper persons. A spirit of fairness tive district, shall be divided as equally as dictates such a course. One list from each possible between the two leading political of the two leading parties covering the disparties, as the same shall be determined up-tricts of the entire city is all that is required on by the Department of Elections at the by the statute. The practical effect of this time of making the appointments" is uncon- is that it constitutes a distinct list for each stitutional in that it conflicts with article district. 14 of the state Constitution entitled "Oath of Office," which after prescribing the oath for public officers provides that "no other oath, declaration or test shall be required as a qualification for any office of public trust." The authorities relied upon are Attorney General v. Detroit, 58 Mich. 213, 24 N. W. 887, 55 Am. Rep. 675; State ex rel. Holt V. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65; People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; Rathbone V. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. R. A. 408; Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; and Bowden v. Bedell, 68 N. J. Law, 451, 53 Atl. 198. We will dispose of the last proposition immediately. It is said in 15 Cyc. 313, F: "This subject, however, has not been much attended to in other jurisdictions, but where the question has been raised it has been held that such a provision does not establish such a political test of office as is repugnant to the Constitution, but is rather a rule for the guidance of the appointing power.' A fatal defect in the list with respect to one or more districts does not have the effect in law or good reason to vitiate and make illegal the remainder of the list. So far as the list which is required to be filed is in full compliance with the statute with respect to one or more districts, it is good and sufficient as to such district or districts. The list filed with the Department of Elections which has been under consideration does not appear to have been prepared with careful attention. But this fact does not warrant the action taken thereon with respect to some of the districts in question. The object of the statute is obvious, and the appointing power should never lightly disregard its purpose. [6] The Department of Elections in making the appointments of registration officers must as a preliminary step determine whether proper persons have been named in the lists filed with them, and whether the qualifications required by the statute exist; but such determination is administrative and Without going into a general discussion of not of such judicial and final character as the question raised, we think the provision will prevent a review of their action by of the statute objected to as unconstitutional mandamus; for, "if it should be held that is reasonable within legislative intendment to promote fair elections, and that it is not within the prohibitory clause of the Constitution or repugnant thereto. In re Wortman (Sup.) 2 N. Y. Supp. 324; State v. McAllister, 38 W. Va. 485, 18 S. E. 770, 24 L. R. A. 343; Rogers v. Buffalo, 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579; and Com. v. Plaisted, 148 Mass. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566. Other cases cited: People v. Hoffman, 116 Ill. 587, 5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793; State v. Kinney, 63 Ohio St. 304, 58 N. E. 809; State v. Finger, 48 Ohio St. 505, 28 N. E. 135; In re Elec. Sup'rs (C. C.) 43 Fed. 859; In re Appt. Elec. Sup'rs (C. C.) 9 Fed. 14, 20 Blatchf. 13; Vincent v. Mott, 163 Cal. 342, 125 Pac. 346; Skain v. Milward, 138 Ky. 200, 127 S. W. 773. in all cases the determination of such pre- [7] We think the case at bar is distinguished from the case of Oxy-Hydrogen Co. v. Simmons et al., in 3 Pennewill, 291, 50 Atl. 213. Proceeding to the consideration of the mer- The duties here are certain, positive, similar and successive, and present no conditions to trict of the Seventh ward, being three of the prevent one procedure for the relief sought. districts in question, and likewise one apThe alternative writ is, therefore, not duplic-pointment in certain other of said districts, itous. [8] The respondents in their return cannot merely rely upon the powers with which they are clothed by the statute and allege that they have performed. The office of the return is to show a right to refuse obedience to the alternative writ, and it must be good, as tested by the ordinary rules of pleading. It must deny the allegations of the writ or show other facts sufficient to defeat the claim of the relator. [9] The question now is whether upon the face of the return, the condition of the relator is so changed as to prevent the issuance of the peremptory writ. The court may quash part of the return and hold part sufficient. State ex rel. Lindsay et al. v. J. & M. P. Co., 7 Pennewill, 397, 72 Atl. 1057. All allegations in the alternative writ sufficiently pleaded and not denied by the return are to be taken as admitted. By the return, the allegations in the first, third, fourth (except in so far as the latter charges fraudulent and illegal neglect, etc.) and seventh paragraphs of the petition are admitted. As to the second paragraph it is admitted that on the date alleged therein "the said James Saulsbury, then representing himself to be chairman of the City Executive Committee of the Democratic party for the city of Wilmington, filed with the Department of Elections for the city of Wilmington, a list purporting to be a list of registration and election officers which had theretofore been submitted by the respective ward-chairman to the Democratic Committee, which said list is in the words and figures following. [Here follows a copy of the list filed.]" But as to the said second paragraph the respondents "wholly deny * * * that a list of three and more names of properly qualified persons for each election district in the city of Wilmington from which said names the Department of Elections for the city of Wilmington was compelled by law to select names for each appointment accredited to the Democratic party as registrars, assistant registrars and election officers for the purpose of registering voters and holding the election to be held on the third day of November, A. D. 1914." A general denial is made of the fifth and sixth paragraphs. We do not think it necessary for the purpose of this case to incorporate those paragraphs in the opinion. It is shown by the return that the list filed by the relator was filed on the 28th day of May, A. D. 1914, and that on the 16th day of June following, the Department of Elections for the city of Wilmington at its meeting accredited to the Democratic party two appointments for certain of the several 118 election districts in the city of Wilmington as therein mentioned, including the Fifth and Tenth districts of the Third ward, and the Tenth dis including the Sixth district of the Second ward, and the Third and Eleventh districts of the Tenth ward, the remaining three districts in question. It is averred that the executive committee of the Democratic party of the city of Wilmington did not furnish the Department of Elections on or before the 1st day of June, A. D. 1914, for each appointment so accredited to the Democratic party a list of three names of properly qualified persons from which list the Department of Elections was required to make said appointments, etc.; that the said list was incomplete, insufficient and not in accordance with law in the following respects. Here follow at length the reasons assigned. We do not think it necessary to incorporate these as most of them relate to other districts than those involved in this proceeding. The substance of the reasons assigned affecting the districts in question follows: With respect to the three districts accredited with two Democratic appointments, it is averred in the return as to the first mentioned that one of the persons on the list, naming him, does not reside at the address given; as to the second, that one of the persons on the list, naming him, does not reside in the district; and that two other persons on the list, naming them, do not reside at the addresses given; as to the third, that one of the persons on the list, naming him, does not reside at the address given, but at Atlantic City, state of New Jersey. With respect to the remaining three districts accredited with one Democratic appointment, it is averred as to the first mentioned that three of the persons on the list, naming them, do not reside at the addresses given; as to the second that two of the persons, naming them, do not reside at the addresses given, and which are not located in the district, and that one of the persons named, is not a qualified voter, and as to the third, that one of the persons named removed from the address given before filing list, and another person named does not reside at the address given. [10] The return must not be uncertain, argumentative or evasive. [11, 12] The averments in the return that certain persons named in the list filed do not reside at the addresses given without further averring that such persons are not residents of the respective districts for which they were named is not sufficient answer to the alternative writ. The averment that a person named in the list does not reside in the district for which he was named is sufficient. The averment that a person named in the list is not a voter in the district for which he was named, when admitted as in this case, is sufficient. The statute makes it mandatory that the names of three persons shall be furnished as provided for each ap pointment accredited to any political party. So that where two appointments are accredited to a party for any district, and six names as required have been submitted for that district in the list required, and the return distinctly and sufficiently shows that one or more of such persons is disqualified, the list with respect to such district does not comply with the requirements of the statute; and the Department of Elections may, as to such district, disregard the remaining names on the list, and appoint other suitable persons. The same principle applies when only one appointment is accredited to a party. And if, in such a case, six names are furnished, and three of the names are properly qualified persons, the appointment must be made from the list. The return is insufficient as to the Sixth district of the Second ward, the Third district of the Third ward, and the Third and Eleventh districts of the Tenth ward, and as to these four districts the return is quashed. With respect to the appointments alleged to have been heretofore made in these four districts of persons whose names were not on the list furnished the Department of Elections, we will say that in contemplation of law the department in attempting to make these appointments exceeded the discretion permitted by the law. The return is sufficient as to the Fifth district of the Third ward and the Tenth district of the Seventh ward and as to these two districts, the motion to quash the return is denied. It is ordered that a peremptory writ of mandamus as prayed for issue directed to the respondents with respect to the Sixth district of the Second ward, the Third district of the Third ward, the Third district of the Tenth ward, and the Eleventh district of the Tenth ward. (5 Boyce, 226) STATE v. MORRIS. Rev. Code 1852, amended to 1893, p. 961 (11 Del. Laws, c. 454) § 1, even though he be not financially interested in the game and does not derive a profit from keeping the table. [Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 190-198; Dec. Dig. § 74.*] 3. CRIMINAL LAW 308*)-EVIDENCE-PRE SUMPTIONS. An accused is presumed to be innocent until proven guilty beyond a reasonable doubt; the burden of proving guilt being on the state. Law, Cent. Dig. § 731; Dec. Dig. § 308.*] [Ed. Note. For other cases, see Criminal 4. CRIMINAL LAW (§ 561*)-TRIAL-EVIDENCE -SUFFICIENCY. In a criminal prosecution, the jury should acquit if they have, after consideration of the evidence in a careful and conscientious way, a reasonable doubt as to accused's guilt. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.*] Charles B. Morris was indicted for exhibiting a gaming table. Verdict, guilty. See State v. Panaro, 91 Atl. 998. Argued before CONRAD and WOOLLEY, JJ. Armon D. Chaytor, Jr., Deputy Atty. Gen., for the State. J. Frank Ball, of Wilmington, for accused. The accused was tried under an indictment (No. 38, January term, 1914) under chapter 454, volume 11, Laws of Delaware (Revised Code 1852, amended to 1893, page 961), containing four counts. The first count charged that Charles B. Morris, the accused, exhibited a gaming table on December 17, 1913. The second count charged that Morris was concerned in interest in keeping and exhibiting a gaming table on said date. The third count charged him with keeping a gaming table from November 1 to December 20, 1913; and the fourth count charged said Morris with being concerned in interest in keeping and exhibiting a gaming table between the latter dates. The state proved: That the defendant upon the dates mentioned in the indictment was conducting a cigar store at Fourth and (Court of General Sessions of Delaware. New Poplar streets, in the city of Wilmington. Castle. Jan. 14, 1914.) 1. GAMING (8 74*)-KEEPING "GAMING TABLE"-OFFENSE. Under Rev. Code 1852, amended to 1893, p. 961 (11 Del. Laws, c. 454) § 1, providing that if any person shall keep or exhibit a gaming table at which any game of chance is played, or shall be concerned in interest in the keeping of such table, he shall be guilty of a misdemeanor, the word "keeping" is to be given its ordinary significance, and a "gaming table" to be understood as one used for gaming purposes; the purpose of the act being to prevent the keeping of devices suitable for gambling. [Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 190-198; Dec. Dig. § 74.* For other definitions, see Words and Phrases, First and Second Series, Gambling Table.] 2. GAMING (8 74*)-KEEPING GAMING TABLE -ELEMENTS OF OFFENSE. Where one keeps a gaming table on which games of chance are played, he is guilty of the offense of keeping a gaming table, denounced by That said business was conducted upon the first floor, from which there were steps leading to a basement which was fitted up with pool tables and also contained two smaller tables about 4 feet and 42 feet in diameter, respectively, covered with green cloth, with playing cards upon them, which basement and paraphernalia were in the possession and control of the accused. At various times on and about the said dates, games of poker, pitch, and pinochle were played with cards for money by various persons and upon the tables furnished by Morris and that the usual amount played for was 5 cents ante and 25 cents limit. That during the course of the games 5 cents would be taken out of the pot and laid aside and when a sufficient amount had accumulated the players would order cigars, cigarettes, chewing gum, or candy, *For other cases see same topic and section NUMBER in Dec Dig. & Am. Dig. Key-No. Series & Rep'r Indexes other game of chance is played for money, or concerned in interest in the keeping or exhibitother thing of value, or shall be a partner or ing such table, bank, sweat cloth, or other device, he, she or they shall be deemed guilty of a misdemeanor," Rev. Code, 961. etc. from Morris or some one representing him, I any denomination, at which cards, dice or any and the amount thus accumulated would be handed to Morris without counting it or without estimating the gross amount of the purchases. That at times the money would be spent for oysters or drinks not furnished by Morris. There was also evidence that at times Morris himself joined in the above mentioned games. There was no evidence, however, that Morris had any direct pecuniary interest in the games, or that he was what is technically known as a "backer." The accused offered no evidence upon his part. State's Prayers. 1. That if the jury find that the accused kept or exhibited any table at which a game of cards was played for money, then they should find him guilty, as under the first clause of the first section of the act (chapter 454, volume 11, Laws of Delaware, Revised Code, 961), the mere exhibiting or keeping of a gaming table is made the crime. Toney V. State, 61 Ala. 1; Wren v. State, 70 Ala. 1; Bibb v. State, 83 Ala. 84, 3 South. 711; Id., 84 Ala. 13, 4 South. 275. v. It is that law that the counsel in this case have asked us to construe. [1] The accused is charged under the first and third counts of this indictment with keeping or exhibiting a gaming table. In the opinion of the court a person keeping a gaming table is liable under the statute; and by keeping, the ordinary meaning of the word is applicable. The word keeping means to maintain, to control, to carry on, to manage. A gaming table is a table used for gaming purposes, a table upon which games of chance are played for a stake, and the evident idea in the minds of the legislators was that the keeping of a table to be used for gaming purposes and called a gaming table was an important and almost necessary adjunct in the matter of gambling, and that in prohibiting the keeping or exhibiting of a gaming table, the effect would be to lessen the offense of gambling. [2] Under the first and third counts of the indictment in this case the accused is charged with exhibiting and keeping (on different charged is fully sustained when the fact is dates) a gaming table. The offense proven to the satisfaction of the jury that the accused kept or exhibited a gaming ta 2. That it is not necessary for the state to show that the defendant had any pecuniary interest or expectation of gain in the keeping and exhibiting of a gaming table, to show a violation of the first clause of section one. See authorities above cited and Commonwealth v. Colton, 8 Gray (Mass.) 488. 3. That the fact that a table may at times have been used for other purposes than gam-cerned in interest in, or deriving a profit ble, and the matter of the accused being coning would not deprive it of its character as a gaming table, if as a matter of fact it was kept and exhibited as a gaming table. Jones v. Territory, 5 Okl. 536, 49 Pac. 934, 935. Counsel for the accused opposed the prayers as asked for by the state, and requested the court to charge the jury that, in order to convict, it is incumbent upon the state to prove beyond a reasonable doubt all the necessary elements or ingredients of the offense charged in the indictment. from it, is not an element in the charge. The keeping and exhibiting are the only things that need be shown under these two counts. That disposes of the first and third counts. In the second and fourth counts the accused is charged with keeping and exhibiting a gaming table in which he was concerned, or in which he had an interest. The court, feel constrained to say that under the evidence adduced in this case in its opinion the charge made in the second and fourth counts, of the indictment that the accused was con That in order to convict, the jury must be satisfied beyond a reasonable doubt that the accused had a pecuniary interest in the keep-cerned in interest in the keeping or exhibiting and exhibiting of a gaming table. ing of a gaming table has not been sustained, and the charges made in those two counts are withdrawn from your consideration; so that the question left for your determination CONRAD, J. (charging the jury). Gentlemen of the jury: Charles B. Morris, the accused, stands indicted before this court and is on trial before you under an act of the is, whether or not the accused kept or exhibis on trial before you under an act of the ited a gaming table, as defined. You are to General Assembly, entitled "An act for the ited a gaming table, as defined. You are to General Assembly, entitled "An act for the weigh, gentlemen of the jury, and consider suppression of gaming," passed as long ago the evidence as you have heard it from the as 1857 (11 Del. Laws, c. 454), so that it is the evidence as you have heard it from the as 1857 (11 Del. Laws, c. 454), so that it is stand. If the state has proven to your satisold enough to be good. It is the province of faction that the accused kept or exhibited a the court when called upon, to interpret and construe the law, and it is your province as gaming table, that it was under his control members of the jury to take the law and to or management, then the offense charged has members of the jury to take the law and to been sustained and your verdict should be fit the facts into it and from that make up guilty, regardless of the fact that no profits your verdict. This act provides: "Section 1. That if any person or persons shall keep or exhibit a gaming table, faro bank, sweat cloth, roulet table, or other device under were shown to have been proved as received by the accused from the table. [3, 4] We also charge you, gentlemen of the jury, that the accused is presumed to be innocent until he is proven guilty beyond a reasonable doubt, and the burden is upon the state to prove its case, so that if after consideration in a careful conscientious way, as reasonable, fairminded men, you have a reasonable doubt as to the guilt of the accused, then you should find him not guilty. The matter is left with you. Verdict, guilty. (5 Boyce, 230) STATE v. PANARO. sweat cloth, roulet table, or other device under any denomination, at which cards, dice or any other thing of value, or shall be a partner or other game of chance is played for money, or concerned in interest in the keeping or exhibiting such table, bank, sweat cloth, or other device, he, she or they shall be deemed guilty of a misdemeanor," etc. The indictment under which the defendant is being tried was obviously drawn in contemplation of the two provisions of this one paragraph of the statute, and contains two counts, the first of which charges simply that the defendant kept or exhibited a gaming table at which cards, dice or other (Court of General Sessions of Delaware. New games of chance were played for money, and Castle. May 7, 1914.) 1. GAMING (§ 63*)—STATUTES-POLICE POWER. Rev. Code 1851, amended to 1893, p. 961 (11 Del. Laws, c. 454) § 1, making it a misdemeanor for any person to keep a gaming table or to be interested in the keeping of such table, is directed against gambling appliances themselves, and is within the police power of the state, being enacted for the protection of the morals of society. [Ed. Note.-For other cases, see Gaming, Cent. Dig. § 120; Dec. Dig. § 63.*] 2. GAMING (§ 74*)—STATUTES-CONSTRUCTION. Rev. Code 1852, amended to 1893, p. 961 (11 Del. Laws, c. 454) § 1, making it a misdemeanor for any person to keep or exhibit a gaming table, or to be interested in the keeping of such a table, denounces two offenses, one the "keeping" or maintaining of a table upon which persons are authorized to play games of chance, and the other being inferested in the keeping; hence one who keeps a gaming table is guilty, though he derives no profit from the keeping. [Ed. Note. For other cases, see Gaming, Cent. Dig. §§ 190-198; Dec. Dig. § 74.*] Daniel Panaro was indicted for violation of the law against keeping gaming tables. On motion to strike the testimony of a wit ness. Motion denied. See State v. Morris, 91 Atl. 998. Indictment (No. 27, May term, 1914) for violating the provisions of chapter 454, volume 11, Laws of Delaware (Rev. Code 1852, amended to 1893, page 961), against keeping gaming tables. Counsel for the defendant moved that all of the testimony of one of the witnesses be stricken out upon the ground that the testimony did not show that the defendant was "concerned in interest" in keeping a gaming table, and therefore did not prove that the defendant had violated any provision of the statute under which he was indicted. Argued before WOOLLEY and RICE, JJ. Josiah O. Wolcott, Atty. Gen., for the State. Robert G. Harman, of Wilmington, the second, that the defendant was "concerned in interest" in such a table being kept and exhibited for such a purpose. It is contended that the mere keeping and exhibiting of a gaming table at which games of chance are played for money is not within the prohibition of the statute, and hence the first count states no offense, and that the only offense contemplated by the statute is that of being concerned in interest in the keeping of such a table for such a purpose, and as the testimony of the witness discloses no such interest, no offense under the second count is proven. The statute in question does not prohibit gambling, but is designed rather to reduce the opportunities and discourage the facilities for gambling. There is nothing in this statute which makes it unlawful for four men to play cards for money upon a table, nor does it make it unlawful for the owner of a table to permit it to be used for card The playing for stakes, when the table is neither kept nor exhibited for that purpose. object of the statute as its title indicates, is "the suppression of gambling," and the particular method pursued by the Legislature to attain this end, was to prevent and prohibit the keeping of gambling tables and devices, under circumstances of notoriety and opportunity, which would induce or enable men the more readily to gamble. This enactment is within the police power of the state, and under that power, a state may enact such laws of regulation and restraint over men and things as are reasonable and proper to protect the lives, health, comfort and property of its citizens and to promote the order, morals and welfare of society. The meaning of this statute is such as its plain words conveys. A gaming table is a table used for gambling purposes, upon which games of chance are played for stakes. The use to which the table is put characterizes the table and determines its part in the crime. If a table so used and thus characterized is kept and exhibited for the uses to which it is put, then he who keeps or exhibits a table for such a purpose, violates the law. The words "keep" or "exhibit," as used *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |