Frisbie v. State.

To both of these questions, we answer in the affirmative. As to the first point, chapter 10, section 1st, of the Statutes of 1855, p. 231, enumerates certain games, which are by that act prohibited, closing such enumeration by the words, "or gambling devices whatever," evidently intending to include, in this general term "device," every game that had been specified before, or any modification of them, which by fair interpretation could be brought within these definitions. The act of February 1st, 1858, (Session Laws of '57 and '58,) section 1st, amendatory of the above act, is still more explicit, prohibiting "all gambling with cards, and all gambling devices," clearly intending the term "devices" to cover the entire catalogue, against which the statute is framed. It must mean this, or it really means nothing; for it would not be pretended, that the law would be effective to punish for any game not enumerated in the statute. Any other view would make the law insensible; and while the courts are bound to construe criminal statutes strictly, the courts are equally bound to make them effective, when it can be done without infraction of settled principles of interpretation. It is difficult to perceive, in this case, how the legislature could more distinctly have pointed out what was intended by the term "device."

As to the second point. The indictment charges the setting up and using," in the exact language of the statute, as applicable to this game. The prosecutor might have added. the words "played," "dealt" and "practiced," words of the statute, and it is not perceived that the indictment would have been better or worse for such words. Here it was the "user" which was the gist of the offence, and that is alleged definitely enough.

In the argument, much stress was laid on the words "set up," used in the indictment, as applied to a game of cards. This is a phrase of very wide latitude of meaning it is true, but quite capable of being generally understood. It does not necessarily and exclusively apply to the construction or setting up of some physical object or design, as billiard or

Horner v. State.

roulette tables, as counsel would insist; but it may, and indeed is more frequently used in a figurative sense. Thus, it is said, that a man has "set up" the business of a merchant, or the trade of a carpenter; or, that he has "set up" in life with fair prospects; and in this we think there was good reason for saying, that the plaintiff in error had set up the occupation of a gambler. This form of expression is too common to be misunderstood; and being used in the statute as descriptive of the manner in which such offences are put in practice, is deemed to have been properly used.

Judgment is affirmed.

SAMUEL HORNER, Plaintiff in Error, v. STATE OF OREGON, Defendant in Error.

Error to Lane.

1. Under the statute, imposing, in certain offences, a punishment by "imprisonment not more than one year," &c., which is silent as to the place of imprisonment, a sentence, inflicting punishment by "imprisonment in the penitentiary for one year," is error, and must be reversed.

2. Criminal statutes are to be strictly construed; and not beyond their literal and obvious meaning.

THIS was a prosecution for malicious threatening, with intent to extort money, under the 34th section of the third chapter of the statute defining crimes and regulating criminal proceedings. A verdict of guilty was rendered in the court below, and the prisoner sentenced to imprisonment in the penitentiary for one year.

J. Kelsay, for plaintiff in error.

G. H. Williams, for State.

Horner v. State.

BOISE, J. The error alleged is, that the Circuit Court had no authority to award such a punishment for the offence. It is contended that the prisoner should have been sentenced to imprisonment in the county jail and not in the penitentiary. The statute on which this conviction rests provides, that the person charged shall be punished by "imprisonment not more than one year," &c., but is silent as to the place of imprisonment; and the question in this case is, had the Circuit Court the discretionary power to imprison the convict either in the penitentiary or the county jail? By the statutes of this State, all crimes, punishable by imprisonment in the penitentiary, are declared to be felonies. And if such a punishment can be awarded in this case, then the offence charged in the indictment is a felony; and all the disabilities incident on a conviction of a felony must follow and attach to the convict as a part of the punishment.

If we apply the well-known rule that criminal statutes are strictly construed, and not construed against the accused beyond their literal and obvious meaning, then it would follow, that, as it is as obvious from the language of the statute, that the imprisonment in this case should be in the county jail, as in the penitentiary, (neither place being mentioned,) we think the statute should be construed as only creating a misdemeanor, and not a felony.

For, to give it the other construction, would be construing the statute against the prisoner, beyond its literal meaning; as it would create the offence a felony, which is an offence of a higher grade than a misdemeanor, and inflict upon the convict incurable disabilities, which are not incident to a misdemeanor.

We think that the higher crime should not be presumed by the court, unless clearly defined by the statute.

Judgment is reversed.

Shirley v. State.

WILLIAM SHIRLEY, Plaintiff in Error, v. STATE OF OREGON, Defendant in Error.

Error to Lane.

1. The introduction of a receipt, purporting to extinguish a claim of sixty-five dollars, as evidence in support of an allegation in an indictment for forging a receipt, extinguishing a claim of sixty dollars, is a fatal variance. 2. Allegations of sums, names, dates, and the like, must be proven as alleged.

THIS is a prosecution and conviction for forgery. The instrument, alleged in the indictment to have been forged, was a receipt, which was set out to be in the following words, to wit:

"This is to certify, that William Shirley has this day paid me sixty-five dollars, on order of Starling Willis give me of sixty dollars.

The bill of exceptions shows, that on the trial of this cause, the prosecution offered in evidence the original receipt, alleged to have been forged, which was in the following words: "This is to certify, that William Shirley has this day paid me sixty five dollars, on a order of Starling Willis give me of sixty-five dollars." To which the counsel for the prisoner objected, on the ground that the receipt offered in evidence varied from the copy set out in the indictment; but the court overruled the objection, and permitted the said receipt to be read to the jury; and to the admission of this evidence the counsel for the prisoner objected.

The question presented to this court is, was there a legal variance between the receipt, as described in the indictment, and the original receipt offered in evidence?

The receipt, as set out in the indictment, purports to have been given to extinguish an order for the sum of sixty dollars.

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Bowen v. State.

The receipt offered in evidence purports to have been given to extinguish an order for the sum of sixty-five dollars, which is an order of a different amount and denomination and if the order for the sum of sixty-five dollars was sued, the receipt set out in the indictment would be no bar to its collection, for it is a well-settled rule, that in construing written instruments, every part operates by way of description of the whole; therefore, allegations of sums, names, dates, and the like, must be proven as alleged. (1st Greenleaf on Ev. section 58.)

One of the essential features in the description of an order, or note, is the amount. A note for fifty dollars is a different instrument from a note of sixty dollars.

It is as essentially different as a bank bill of the denomi nation of five dollars is from one of the denomination of ten dollars; and, it is very clear, that a receipt given, declaring the payment and discharge of a note for fifty dollars, would not operate as a discharge of a note for sixty dollars.

We think the variance fatal.

Judgment reversed.

GEORGE M. BOWEN, Plaintiff in Error, v. STATE OF OREGON,

Defendant in Error.

Error to Jackson.

The overruling of a motion for a new trial, by the court below, cannot be alleged as error.

An indictment, alleging that on a day certain a mortal wound was inflicted, which did not allege the death upon a particular day, when found and presented, within one year from the time of giving such wound, is sufficiently correct under the statute.