State v. . Webster , 218 N.C. 692 ( 1940 )

Reference to the second warrant shows that probably two offenses are charged — operating a gambling or gaming house and the unlawful possession of gambling devices. A perusal of the judge's charge shows that he elected to present to the jury, in this warrant, only the charge of keeping a gambling house, treating the references to sections 4434 and 4433 as surplusage, or as explanatory of the charge. The defendant took no exception to this treatment of the warrants.

There was plenary evidence to go to the jury as to both offenses submitted for their consideration, and the motions for judgment of nonsuit were properly overruled.

The defendant here relies mainly on exceptions to the instructions to the jury, which we now consider.

It is contended the judge trespassed on the statute — C. S., 564 — in expressing an opinion on the evidence in the following bracketed clause of his charge: ". . . as to whether you find him guilty of having these gambling devices in his possession." But the context shows that the judge was referring to the warrants, or charges, and the reference was purely abstract — to the devices mentioned in the warrant, rather than those about which testimony had been taken. He had not yet referred to the evidence. The point is too narrow to support a contention of prejudicial error.

For the same reason — that it is an expression of opinion on the evidence — objection is made to the following:

"The defendant contends that he is charged under the wrong statute. (c) Now, as to that, gentlemen, I charge you as a matter of law that a punchboard under the statute and a tip board would be the same thing under that statute, and I charge you that if you find that this defendant is guilty, are satisfied beyond a reasonable doubt that he had these tip boards in his possession, and that they are gambling devices, I charge you he would be guilty under that statute as a matter of law. (d)"

Obviously the intention was to instruct the jury that under the evidence a tip board would be as much within the statute as a punchboard, as a gambling device. This is clarified by the latter part of the quotation: ". . . if you . . . are satisfied beyond a reasonable doubt that he had these tip boards in his possession, and they are gambling devices." It is the province of the jury to pass on and determine the facts, but when they are determined, whether they describe or define something within the statute, is a matter of law. Taken in its proper connection, the instruction is intended to mean no more. The probability of prejudice from this source is, we think, inconsiderable.

Finally, defendant makes a broadside exception to the charge on the ground that it fails to explain and apply the law to the evidence, as required by C. S., 564. This exception could well be rejected, since no specification of the supposed defect is made in the assignment of error.Jackson v. Lumber Co., 158 N.C. 317, 74 S.E. 354. But in the brief, counsel point to the fact that nowhere in the charge is there given a definition or explanation of "gambling" or "gambling device." As to this, we think the observations of Montgomery, J., speaking for the Court in S.v. Morgan, 133 N.C. 743, 745, apply as well here as they did to the indictment in that case: "Where the law uses the word `gaming' it not only uses a term well defined and known to the law writers, but its meaning is well understood by the citizens of the Commonwealth; and when the words `gambling house' are used all English speaking people know the meaning of them." Perhaps it may have been the duty of the judge to have defined these terms, as a matter of "subordinate" elaboration, if a special instruction had been asked; but the terms are not technical, or even appropriated to the law, which sometimes gives a legalistic twist to common expressions. They are terms used in common parlance, and it seems to us supererogation to require the court to garb simple words in the starches and ruffles of technicality, which often tends to make them less understandable.

Other exceptions not discussed are not considered as presenting prejudicial error justifying the court in disturbing the result of the trial.

We find

No error.