State v. Roe , 37 Idaho 297 ( 1923 )

BUDGE, C. J.

— The appellant was prosecuted in Payette county for the crime of gambling. He was tried by a jury and convicted. This appeal is from the judgment of conviction.

The only question raised by appellant is as to the sufficiency of the complaint, the allegations of which, so far as material to our discussion, are as follows:

. . . that on or about the 1st day of May, A. D. 1921, in the county of Payette, State of Idaho, a public offense was committed, to wit: that of gambling, by playing and carrying on a game played with dice for money, to wit, by C. S. Roe, the above-named defendant, who then and there wilfully, knowingly and unlawfully engaged in, played and carried on a game played with dice for money.”

It is appellant’s contention that the complaint fails to state the time and .place where such crime was committed and reliance is placed upon the ease of State v. Cole, 31 Ida. 603, 174 Pac. 131, to support such contention. It will be noted in the instant ease that the words “then and there” are used in the charging part of the complaint, having reference to “on or about the 1st day of May, A. D. 1921” and “the County of Payette, State of Idaho,” thereinbefore used, and we think this sufficiently establishes the time and place where the crime was committed.

In the case of State v. Cole, supra, being a prosecution for lewd cohabitation, the complaint alleged the return of the parties to Adams county and their living together as man and wife, but failed to allege whether they lived together in Adams county or where they lived together, and for that reason this court held the complaint insufficient.

The same rules which govern informations govern complaints. (State v. Stafford, 26 Ida. 381, 143 Pac. 528.) The rule with reference to indictments and informations is laid down in 22 Cyc. 312, where it is said: “Where the venue has been well laid in the margin, it is regarded as sufficient to refer to it in the body of the indictment by such words as ... . ‘then and there,’ and the same is true when the county has been mentioned in the commencement or in the caption.”

In the case of Walker v. State, 68 Tex. Cr. 315, 151 S. W. 318, it was held: “An information charging that in a certain town, voting precinct, and county of the state, while a public election was being held on a certain day, deféndant then and there unlawfully gave to another intoxicating liquor, sufficiently charged, by the use of the words ‘then and there,’ that the offense was committed in the town specified.” Also in the case of De Los Santos v. State, 65 Tex. Cr. 518, 146 S. W. 919, it was held: “Where an indictment for permitting gambling on premises stated the date of the offense and laid the venue in a certain county of the state, it was sufficient to refer thereafter in the indictment to the time and place by using the words ‘then and there.’ ”

The judgment therefore must be affirmed and it is so ordered.

Dunn, J., concurs. Wm. E. Lee, J., concurs in conclusion reached.