Ah Poo v. Stevenson

Mr. Justice Bean

delivered the opinion of the court.

The petition specifies that the municipal court had no jurisdiction to render the judgment sought to be reviewed for the reason that the ordinance alleged to have been violated “is unreasonable, oppressive and unconstitutional,” setting forth in detail the reasons for such claim. Becognizing the authority of the cases of Ah Sin v. Wittman, 198 U. S. 500 ( 49 L. Ed. 1142 , 25 Sup. Ct. 756), and In re Ah Cheung, 136 Cal. 680 ( 69 Pac. 492 ), upholding a like ordinance of the city of San Francisco, the invalidity of the ordinance involved in the present case is not contended for by counsel for plaintiffs upon this appeal.

1, 2. In order to review the judgment of a court of inferior jurisdiction it is incumbent upon petitioners for a writ of review to set forth in the petition the errors alleged to have been committed therein: Section 604, L. O. L. The petition for the writ does not allege that the complaint against the petitioners in the municipal court did not state facts sufficient to constitute an infraction of the ordinance. The complaint was not challenged by demurrer or motion in that court. Passing this question, however, and assuming without deciding that the insufficiency of the complaint is a jurisdictional question which may be raised at this time, we will take up the matter of the complaint which is submitted by the briefs and arguments upon both sides. *345 We note that it is contended by counsel for plaintiffs (l)that the complaint is defective in that it is not direct and certain as to the parties charged except as to the defendant Ah Poo. Proceedings in the municipal court of Portland are governed by the general laws of the state applicable to Justices’ Courts. Charter of Portland, Section 332.

Section 2482, L. O. L., relative to procedure in criminal actions in Justices ’ Courts is as follows:

‘ ‘ The complaint is to be deemed an indictment within the meaning of the provisions of Chapter VII of the Code of Civil Procedure (Title XVIII), prescribing what is sufficient to be stated in such pleading, and the form of stating it. ’ ’

Section 1437, L. 0. L., declares that an indictment must contain:

“ (1) The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; (2) a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.”

3-5. The criticism is that the names of all the defendants do not appear in the body of the complaint. An indictment or complaint must be positive in respect to the charge that the person accused committed the act which renders him amenable to the charge: 10 Enc. Plead. & Prac. 476. It is not necessary, however, that the defendant’s name should be constantly repeated in a complaint. After once stated in full, the name or description of the person may be abbreviated, when it occurs in the same count with a reference to the prior statement of it, by the use of the words “said” or “aforesaid”: State v. Coppenburg, (S. C.) 2 Strob. *346 273 ; State v. Eddy, 46 Or. 625, 627 ( 81 Pac. 941 , 82 Pac. 707 ). The effect of Section 1437 of the Code is to make the title an integral part of the pleading. The complaint in the municipal court set forth the names of the plaintiffs, 27 in all, in its title as defendants. Thereafter in the body of the complaint they are referred to as “said defendants Ah Poo and 27 others.” It was unnecessary to repeat the names of the defendants in the main part of the complaint otherwise than as “the said defendants” or “the said defendants Ah Poo and others” or “the said defendants Ah Poo and 27 others.” If necessary, the words “Ah Poo and 27 others ’ ’ found in the complaint after the words ‘ ‘ said defendants,” may be treated as surplusage and rejected, and still there will be sufficient in the complaint to designate the persons accused: 37 Cyc. 614; State v. Horne, 20 Or. 485 ( 26 Pac. 663 ). It is possible in certain cases for a complaint to describe a defendant without giving his name. The complaint is sufficiently definite as to the parties charged in order to inform defendants who were accused thereby.

6, 7. It is further contended on the part of plaintiffs that the complaint charging the defendants with a violation of the city ordinance by visiting a place where gambling implements are exhibited and exposed to view and which names as gambling implements articles which are ordinarily put to an innocent use, such as a table and beans, should further charge that such articles were actually designed and used for purposes of gambling. The complaint designates the apparatus as “gambling implements.” A “gambling implement,” and a “gambling device,” are synonymous terms. A “gambling device” is defined as:

An “invention often used to determine the question as to who wins and who loses, that risk their money on a *347 contest or chance of any kind; anything which is used as a means of playing for money or other thing of value, so that the result depends more largely on chance than skill; a gambling device ”: 20 Cyc. 871.

The fact that an implement, such as a table, is susceptible of lawful use, does not make it as a matter of law impossible that the article should be a gambling implement. It was a matter of proof whether as the game is usually actually carried on, the utensil is used as a material instrument in ascertaining whether the player should win or lose. In the absence of the evidence which is not before us it must be presumed that the necessary proof was produced: Commonwealth v. Adams, 160 Mass. 311 ( 35 N. E. 851 ).

8. The complaint designates the table and other apparatus as gambling implements. These words were just as effective to inform the defendants of what was intended as though it had alleged that such articles were actually designed and used for purposes of gambling. The complaint was sufficient fully to inform the defendants of the nature of the accusation against them; and to say the least, was good after verdict. It is not consistent with the administration of justice or reasonable that the proceedings of a court of such limited jurisdiction as the municipal court should be scrutinized with the same technicality as to the defendants as are those of courts of general criminal jurisdiction with power to sentence the defendant to imprisonment in the penitentiary for a long term: Wong v. City of Astoria, 13 Or. 538 ( 11 Pac. 295 ); McQuillin, Mun. Corp., §§ 1059, 1060.

9. In the case at bar it does not appear that a harsh or unreasonable administration of the ordinance was indulged in by the imposition of a fine of $20 against each of the defendants for the violation of an *348 ordinance designed to prevent and suppress gambling which is a proper matter for prohibition by police regulations. There is some discussion in the briefs of plaintiffs in regard to the facts disclosed by the evidence. This feature of the case is not before us as we have indicated and we are not in a position to retry the facts or comment on the evidence. For the two reasons suggested the judgment of the lower court will be reversed and the cause remanded with directions to dismiss the writ of review.

Reversed and Remanded With Directions.

Mr. Chief Justice McBride, Mr. Justice Moore, and Mr. Justice McCamant concur.