Adam S. Bales v. The State.

• Decision Date: 31 July 1868
• Citation: 3 W.Va. 685
• Court: West Virginia Supreme Court
• Parties: Adam S. Bales v. The State.

3 W.Va. 685

Adam S. Bales

v.The State.

Supreme Court of Appeals of West Virginia.

July Term, 1868.

1. Larceny may be committed of property used for gaming purposes.

2. A case in which a new trial was properly refused, asked on the ground of newly discovered corroborative evidence.

Adam S. Bales was indicted by the grand jury of the county of Berkeley, at the September term, 1867, for the larceny of three hundred and thirty-nine ivory checks of the value of twenty-five cents each, of the goods and chattels of Robert D. Chambers. He was found guilty at the same term, and his term of imprisonment fixed at one year in the penitentiary. A motion was made by the defendant for a new trial, which was continued to the January term, 1868, when it was overruled and the prisoner sentenced.

The principal point on which the case was decided here was, whether larceny could be committed of property used for gambling purposes the evidence adduced showing that the checks were used in playing the game of poker.

The defendant below filed an affidavit on a motion for a new trial, to show that he was not aware that there existed any testimony to corroborate a witness on a branch of his defense, viz: that he bought the checks from one Smith; that the testimony of the witness who testified to this fact, was assailed by evidence tending to impeach her veracity; that he probably would not have summoned the witnesses who would have corroborated this statement, as he was under an impression, which he learned was erroneous, that they could not be sworn on account of their age. This affidavit was accompanied by that of two persons his nephew and niece who were inmates of his family at the time of the committing of the alleged offense, aged respectively 11 and 12 years, who corroborated the testimony before mentioned, of the purchase of the checks.

There was a further error assigned in the petition that, there was no proof that the intrinsic value of the checks was proven to be 20 dollars, and therefore the offense could not be grand larceny, but the record showed that it was proven on the trial that whilst they were used to represent different sums in games, or for the purpose of change at the bar of the owners saloon, they could not be bought at the manufactures for less than 25 cents apiece.

C. J. Faulkner for the prisoner.

Attorney-General Melvin for the State.

I. The articles named in the indictment are used frequently for legitimate purposes. And if not so used, they would still be the subject of larceny. Com. vs. Rourke, 10 Cush., 397; 9 Gray, 139.

II. The intrinsic value was shown to have been over 20 dollars.

III. There was no error in excluding the testimony of Dr. Gehring. It was simply cumulative, and its admission would have tended to protract the trial indefinitely. Besides, the order of the proof is wholly within the discretion of the presiding judge. Ray vs. Smith, 9 Gray, 141.

IV. The motion for a new trial, on the ground of after-discovered testimony, was properly overruled.

As to the children: The newly discovered testimony is such as reasonable diligence would have discovered before trial; and, besides, is merely cumulative. Thompson's case, 8 Grat, 637.

As to Ellen Ward: Impeaching testimony will not serve to re-open a case. 8 Grat., 687. She herself stood impeached, and being unworthy of credit, no different...