No. 15,036.

#### Kiley *v.*The State.

Criminal *Law.*— Minor.—Pool *Table.*— Permission *to Play Upon.*— Indict*ment.*— Duplicity.—Statute *Construed.*— Under section 2087, B. S. 1881, which provides that any person owning or managing a pool table, etc., who allows or suffers a minor to play at or upon such table, shall, upon • conviction thereof, for each game so allowed or suffered to be played, be fined in any sum not more than fifty dollars nor less than five dollars, the offence consists in allowing the minor to play, the number of games played under one permission relating merely to the question of punishment, and hence where an indictment charges the playing of four games of pool at one time and place, it is not bad for duplicity.

Same.— *Witness.*— Immaterial *Testimony.*— In a prosecution for permitting a minor to play upon a pool table, a question propounded to a witness asking him whether or not “ he is the same person who had been a witness in several liquor cases,” is objectionable, as calling for immaterial testimony.

From the Grant Circuit Court.

*A. Steele*and *J. A. Kersey,*for appellant.

*S. W. Cantwell,*Prosecuting Attorney, and *H. J. Paulus,*for the State.

Olds, J.

This is a prosecution for unlawfully permitting *66a minor to play pool. ■ The indictment charges that the defendant, John Kiley, on the 4th day of September, A. D. 1888, at said county of Grant, and State of Indiana, did then and there own and have the care, management and control of a certain pool-table, then and there situate, and did then and there unlawfully allow, suffer and permit one John Winchellto play four games of pool, at and upon said table, with one Isaac Wagoner, he, the said John Winchell,being then and there a person under the age of twenty-one years. There was a trial and the defendant found guilty, and his punishment assessed at a fine of twenty dollars.

There was a motion for a new trial by the defendant, which was overruled, and exceptions taken, and the defendant then moved the court in arrest of judgment, for cause that the facts stated in the indictment do not constitute a public offence; which motion in arrest of judgment was overruled and exceptions taken, and the rulings of the court in overruling the motion for a new trial and in arrest of judgment are assigned as error.

The objection urged by counsel for appellant to the indictment is that it charges four separate and distinct offences; that the playing of one game of pool constituted an offence, and the indictment charges the playing of four'games, and that the indictment is bad for duplicity. It is the well-settled doctrine that an indictment is bad which charges in one count two or more separate and distinct offences. *State*v. *Weil,*89 Ind. 286 ; *Knopf*v. *State,*84 Ind. 316. A motion to quash such an indictment made at the proper time would have to be sustained ; but the question in this case is as to whether or not the indictment charges more than one offence. The statute upon which the prosecution is based reads as follows : Section 2087, R. S. 1881. “ If any person owning or •having the care, management, or control of any billiard table, pool table, or any kind of gaming table, bagatelle table, or pigeon-hole table, shall allow, suffer, or permit any minor to play billiards, bagatelle, pool, or any other game at or upon *67such table or tables, he shall, upon conviction thereof, for each game so allowed, suffered, or permitted to be played, be fined in any sum not more than fifty dollars nor less than five dollars.”

The offence, as we regard it, consists in allowing, suffering, or permitting a minor to play at or upon such table, and the punishment which shall be assessed depends upon the number of games; that is to say, the person owning, or having the care, management or control of a' pool table is liable to a separate prosecution for each time he allows, suffers, or permits a minor to play at or upon such table; and when so allowed to play, if the 'minor plays one game, the person is liable to a fine of not more than fifty nor less than five dollars ; if the minor plays two games, the person so permitting him is liable to a fine in double the amount, and so on in proportion to the number of games played under the one permission to play; each time permission "is given, or the minor is suffered or allowed to play constitutes a separate and distinct offence, but when once permission is given, and the minor is allowed or -suffered to play, the number of games played at one continuous sitting, or playing constitutes but one offence, although several games may be played in succession ; but if such minor ceases to play, and is again allowed, suffered or permitted to play, such subsequent playing constitutes a separate offence. This we think the fair and reasonable construction to be placed upon this section of the statute; to construe it otherwise we think would be placing an unnecessary burden upon the State, and inflicting a corresponding hardship upon the defendant by compelling the State to institute separate prosecutions for each game played, and subject the defendant to the payment of the costs of the several prosecutions for the doing of what is, in fact, but one unlawful act, and we think this construction fairly supported by the authorities. *Nace*v. *State,*117 Ind. 114; *Freeman v. State,*119 Ind. 501; *Moore*v. *State,*65 Ind. 213.

The indictment charges the playing of four games of pool *68at one time and place. The motion in arrest was properly-overruled.

Filed Sept. 19, 1889.

It is further urged, that the court erred in giving the ninth instruction to the jury, which is as follows: “If you find the defendant guilty, you will take into consideration the number of games played by the witness Winchell, if more than one, which the evidence shows to have been played.” What we have said in regard to the indictment, disposes of the objection made to this instruction. The instruction was not subject to the objection .urged.

Upon cross-examination of the witness Winchell in rebuttal, the appellant asked him the question as to whether “ he was not the same Winchell who had been a witness in several liquor *cases; ”*to which question the State objected, and the court sustained the objection, and this ruling is assigned as error. It does not appear that the testimony to be elicited by this question would have any materiality. From anything that appears in the case, it was immaterial whether the witness had been a witness in other cases or not, and the objection was properly sustained.

There is no error in the record for which the judgment should be reversed.

Judgment affirmed, with costs.