Baldwin v. State
| Decision Date | 12 December 1914 |
| Docket Number | A-2158. |
| Citation | 144 P. 634,11 Okla.Crim. 228,1914 OK CR 151 |
| Parties | BALDWIN ET AL. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
When an indictment or information charges the person or persons on trial with gaming, under the provisions of section 2499, Rev Laws 1910, the sole and only issue is: Was such offense committed in the manner and form charged?
This court has often held in its opinions that the proof introduced on the trial of a person charged with a specific offense should conform to the issue as laid, and the county attorneys have been warned repeatedly from excursions into other issues which could have no purpose other than by improper methods to prejudice the minds of the jurors. When the record disclosed the fact that the county attorney has been guilty of such unfair conduct and ruthless disregard of the rules of evidence, the trial court should set aside a verdict of conviction and see that the case is tried according to law; otherwise this court will reverse a judgment and require him so to do.
On the trial of a person or persons charged with gaming, the county attorney has no right to attempt to prove that the person or persons charged were engaged in the maintaining of a place where intoxicating liquors were kept and sold, or that any one of them has been guilty of corruption in office, or that any one of them has been advised by others to discontinue a lawful business and engage in conducting a saloon. Such offenses are foreign to the issue and should be prosecuted by separate information or indictment, if the facts so warrant.
When the proof on the part of the state is wholly circumstantial it is the duty of the trial court to give the law of circumstantial evidence in his instructions.
(a) It is as much the duty of the trial court to give a correct statement of the law of circumstantial evidence as it is to give any instruction whatever.
(b) For an instruction condemned as incomplete and not a fair statement of the law of circumstantial evidence, as applied to the facts in the record of the case at bar, see opinion.
(c) For a correct statement of the law of circumstantial evidence which should have been given by the trial court, see opinion.
Appeal from County Court, Osage County; Paul B. Mason, Judge.
J. M Baldwin and others were convicted of gaming, and appeal. Reversed and remanded.
J. M Worten, of Pawhuska, for plaintiffs in error.
S. I. McElhoes, Asst. Atty. Gen., for defendant in error.
The plaintiffs in error, J. M. Baldwin, Rowe Little, and M. R. Hill, were jointly tried and convicted at the July, 1913, term of the county court of Osage county, on a charge of gaming. The jury fixed the punishment of Little at a fine of $50 and imprisonment in the county jail for a period of 30 days, the punishment of Baldwin at a fine of $100 and imprisonment in the county jail for a period of 30 days, and the punishment of Hill at a fine of $100 and imprisonment in the county jail for a period of 30 days. The record brings the case up as to all three of the parties. The brief filed by counsel is for Baldwin and Little. No brief is filed on behalf of Hill.
There are many assignments of error, only a few of which, however, will be considered. This is a case wherein the proof is based entirely on circumstances. The officers raided a joint in the town of Bigheart about the 8th of March, 1913. There were some 12 or 15 persons in the place at the time, a number of whom departed from the scene hurriedly when the officers appeared. Poker chips and money and a deck of cards were found upon a table. The plaintiffs in error were in the place at the time, and two of them were seated at a table upon which were cards, money, and poker chips. The plaintiffs in error were arrested, charged with playing poker.
The county attorney, in the cross-examination of the plaintiffs in error, seems to have lost sight of the issue that was on trial, and extended his examination into issues that could have had no relation to the case, except to show the jury that he was trying men who were either engaged in running a gambling house, selling whisky, or otherwise violating the law. The sole and only issue in the case on trial was: Did the plaintiffs in error, at the time and place alleged, play poker for money? When plaintiff in error Little was on the stand as a witness for himself, the county attorney asked:
On objection being interposed, this question was followed with another, to wit:
On objection being interposed, the witness was asked if he saw money on the table, and then was asked:
Objection was interposed and overruled. Witness was then asked:
Later witness was asked:
Objected to and overruled, and, before answering, the witness was asked the following question:
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