Voght v. State

• Decision Date: 29 May 1890
• Docket Number: 14,419
• Citation: 24 N.E. 680,124 Ind. 358
• Parties: Voght v. The State
• Court: Indiana Supreme Court

24 N.E. 680

124 Ind. 358

Voght v. The State

No. 14,419

Supreme Court of Indiana

May 29, 1890

Petition for a Rehearing Overruled June 18, 1890.

From the Huntington Circuit Court.

The judgment is affirmed, with costs.

J. B Kenner and J. I. Dille, for appellant.

L. T Michener, Attorney General, and J. H. Gillett, for the State.

OPINION

Mitchell, J.

It is provided in section 2079, R. S. 1881, among other things that whoever being the owner of any building or room, rents the same to be used or occupied for gaming shall be fined, and in section 1815, R. S. 1881, it is declared that "It shall be sufficient evidence that any building or other place was rented for the purpose of gaming, if such gaming was actually carried on, and the owner or lessor thereof knew or had good reason to believe that the lessee suffered gaming therein, and such owner or lessor took no sufficient means to prevent or restrain the same."

The appellant, Jacob Voght, was indicted and tried at the October term, 1887, of the Huntington Circuit Court, for having unlawfully rented his building and room to be used for gaming. After hearing the evidence a jury assessed a fine of sixty dollars against him, and from the judgment of conviction rendered upon the verdict this appeal is prosecuted.

There was evidence tending to show that the appellant rented a back room in the second story of a brick building owned by him, situate in the city of Huntington, to a Mr. Parker, ostensibly for a sleeping apartment. The lease was by parol, and was to run two years. The room had been used for gaming before Parker leased it, and the appellant had been indicted for permitting it to be so used. Accordingly he charged Parker that no gambling should be allowed by him. Parker occupied the room for three or four months, his occupancy being of an equivocal character, leading to a strong suspicion that the room was being used during that time, by his permission, for a gambling room. At the end of that time he sublet it to Anderson, who seems to have had no other occupation than that of gambling, for whom, circumstances tend to show, he rented it in the first place. The appellant lived two squares and a half from the room, and was acquainted with Anderson, who paid the rent to the appellant most of the time after he sublet from Parker. The room was furnished with tables, chairs, a sideboard and lounge, but had in it no bed, or other conveniences for a sleeping apartment, and the evidence tends to show that it was used for no other purpose than for gambling for nearly two years before the appellant was indicted. The city marshal, the hotel keeper, and a number of other citizens, testified that it was generally reputed that the room was used for a gambling room. There was direct evidence that it was actually so used. The evidence tends to show that Anderson was twice indicted by the grand jury, at the April term, 1887, and again at the December term, 1887, for keeping a gambling establishment in the appellant's room, and that he pleaded guilty to both indictments, and was fined in each case. The appellant had other tenants in the same and other buildings, owned by him in the city of Huntington, and attended to collecting his rents himself, and mingled with the citizens of the city, so far as appears, like others of his associates. It is true he testified that he did not rent the room to Anderson; that it was specially agreed between Parker and himself that the room should not be used for gambling; that he supposed Parker was his tenant all the time, and that although he received rent from Anderson, he supposed he was paying it for Parker. He also testified that he made some repairs to the room at the request of Anderson, of whose occupancy he had knowledge, but that he did not know what the latter was doing in the room, or what use he was putting it to; that he never inquired, and that he could not recollect of having heard that Anderson was arrested for keeping a gambling house, in his room, or that he had ever heard that he was so engaged.

It is insisted (1) that because the charge in the indictment is that the defendant rented his room to be used for gaming, the evidence tending to show the general reputation of the room, and that the occupant had been convicted of keeping a gambling house therein, or that tended to show that the appellant knew, or had good reason to believe, that his lessee suffered gaming therein, was improperly admitted; and (2) that there is no competent evidence tending to show that the appellant knew, or had reason to believe, that his room was being used for gaming.

It was not necessary to prove by direct evidence that there was a specific agreement, or intent on the part of the appellant and his lessee at the time he leased the room, that it was to be used for the purpose of gaming. It would rarely happen that such evidence could be obtained, and if direct evidence were required, the result would be that no one could ever be convicted of renting a building or room for the immoral and unlawful purpose of setting up a gambling establishment. Accordingly it has been provided in the statute above set out, that it shall be sufficient evidence of the fact that a building or room was rented for the purpose of gaming, if gaming was actually carried on therein with the knowledge of the owner, or under such circumstances that he had good reason to believe that his room was being so used.

In Morgan v. State, 117 Ind. 569, 19 N.E. 154 this statute was held to be a valid constitutional enactment. While we should unhesitatingly declare a...