Opinion
No. A-9283.
May 27, 1938.
(Syllabus.)
1. Indictment and Information — Sufficiency of Information as Against General Demurrer. An information is sufficient, as against a general demurrer where it states the facts clearly and distinctly, and which by the ordinary rules of construction apprises the defendants of the exact nature of the offense charged.
2. Same — Technical Construction of Statutes and Indictments and Informations not Favored. The courts of this state have never been favorable to technical construction of the statutes, and informations and indictments filed thereunder.
3. Gaming — Evidence Sustaining Conviction for Opening and Maintaining Gambling Game. Evidence examined, and found sufficient to support the charge of opening and maintaining a gambling game, the conducting the same "for money, checks, credits or other representatives of value."
4. Evidence — Admissibility of Evidence Given by Defendant at Prior Trial When He Was not on Trial.
held
5. Jury — Constitutional Right to Waive Jury Trial. Under section 20, article 7, of the Constitution of this state, Okla. St. Ann. Const. art. 7, § 20, a defendant has the right to waive a jury trial, and submit his case to the court.
6. Stipulations — Binding Effect of Stipulation Waiving Right of Severance and Trial by Jury. When in consideration of the continuance of his case, both the state and defendant, in open court, agree to a waiver of the right of a severance and a trial by jury, and a continuance of the case, and said agreement is entered on the minutes of the court, the same is binding on both the state and defendants.
7. Same — Discretion of Court as to Permitting Defendants to Withdraw Agreement and Have Jury Trial. Permission to the defendants to withdraw such agreement and have a jury trial rests in the sound judicial discretion of the trial court, and the court's decision will not be set aside unless there is an abuse of this discretion.
8. Appeal and Error — Reduction of Sentence for Maintaining Gambling Game. Under the facts in this case the judgment and sentence is modified from a fine of $1,000 and five years in the penitentiary to a fine of $1,000 and two years in the penitentiary.
Appeal from District Court, Tulsa County; Leslie Webb, Judge.
Ned Vandeventer was convicted of the crime of opening and conducting gambling games, and he appeals. Judgment modified, and, as modified, affirmed.
Walter Henneberry and Edward Crossland, both of Tulsa, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Holly L. Anderson, Co. Atty., of Tulsa, for the State.
The defendant, Ned Vandeventer, was charged by indictment returned by a grand jury of Tulsa county, with the crime of opening and conducting gambling games; was tried, convicted and sentenced to pay a fine of $1,000 and to serve a term of five years in the penitentiary.
This is a companion case of Roy Staley et al. v. State, 64 Okla. Cr. 302, 79 P.2d 818, decided by this court on the 20th day of May, 1938. The questions of law presented are identical with the questions presented in that case and it becomes unnecessary to again review them.
The defendant was charged by indictment with opening up and conducting gambling games in violation of Oklahoma Statutes, 1931, section 2193 (Okla. St. Ann., Tit. 21, sec. 941), on December 2, 1935, at "The Oaks", situated on Highway No. 64, in Tulsa county, Okla.
The record reveals that defendant operated and managed this place from some time in September, 1935, until December 2, 1935, the date charged in the indictment. That it was conducted as a night club and gambling hall, and gambling was permitted there. That different persons were employed and paid by defendant, just as in the Roy Staley Case. An orchestra was employed, and meals were also served. Gambling tables and other paraphernalia used in a gambling house were set up, and the evidence showed that people resorted there for the purpose of gambling at the different games. That the playing was for "money, checks, credits and other representatives of value". The defendant was seen there handling the different games, and selling and cashing the checks, and acting as the manager in charge. The evidence was sufficient to sustain the conviction of the defendant.
For the reasons stated in the case of Roy Staley et al. v. State, we are of the opinion that the judgment in this case should be modified from a fine of $1,000 and five years in the penitentiary, to a fine of $1,000 and two years in the penitentiary, and with this modification the judgment of the district court of Tulsa county is affirmed.
DOYLE, J., concurs. DAVENPORT, P. J., absent and not participating.