Colbert v. State

• Court: Arkansas Supreme Court
• Writing for the Court: GRIFFIN SMITH; HOLT; ROBINSON; WARD
• Citation: Colbert v. State, 238 S.W.2d 749, 218 Ark. 790 (Ark. 1951)
• Decision Date: 23 April 1951
• Docket Number: No. 4652,4652
• Parties: COLBERT v. STATE.

Page 749

238 S.W.2d 749

218 Ark. 790

COLBERT v. STATE.

No. 4652.

Supreme Court of Arkansas.

April 23, 1951.

Ovid T. Switzer and W. P. Switzer, Crossett, for appellant.

Ike Murry, Atty. Gen., Arnold Adams, Asst. Atty. Gen., for appellee.

GRIFFIN SMITH, Chief Justice.

Appellant as the defendant below was tried on grand jury charges that he operated a gaming house, 'in violation of Title 41-2001, Arkansas Statutes, 1947'. Punishment was fixed by the jury at the minimum permitted by law. It is contended (a) that the gaming house in question was a stretch of woodland traversed by a railway used in hauling logs; (b) it was a mile from human habitation and inaccessible to automobiles; (c) the equipment consisted of several bench-tables made from planks nailed between posts, three of which were used for crapshooting purposes; and, (d) the court erred in not directing acquittal.

State witnesses fixed the gaming operations at a point near the railroad in West Crossett--'about a mile from Ruth Norman's place, between Crossett and West Crossett'. There was testimony that crapshooting had been going on there for about two years. There were three tables. The defendant had stated that one was his. He would hold the money--'keep it straight'. When this witness patronized the place there would usually be 'a bunch' [in attendance] when he got there. Everett Colbert was 'the boss' of operations at his table.

Another witness replied affirmatively when asked, 'Do you know whether there is a regular crap game played on a regular crap table out by West Crossett [near] the railroad track?' He had never seen anyone running 'that particular game' except the defendant.

This witness, after explaining how the planks were nailed to posts, was asked on cross-examination, 'Do they have a blanket over them, or anything? A. Yes, they have some kind of cloth or something over them'. The largest crowd gathered for gaming Saturdays--'morning or afternoon, but they don't gamble on Saturday nights'. The witness then said: 'I play a little here (referring, presumptively, to the defendant's operations), and if I lose there I go to another table. It is a general meeting place--a place to congregate and gamble'.

The statute mentioned in the indictment extends to all persons who are interested, directly or indirectly, in keeping, conducting, or operating a gambling house, 'or place where gambling is carried on'. While the indictment did not expressly differentiate between 'keeping or conducting a gambling house' and 'keeping or conducting a place where gambling is carried on', the offense alleged was mentioned as a violation of Ark.Stats. § 41-2001, and the section contains the interdiction against conducting a place where gambling is engaged in. In charging the jury this statute was read.

Appellant calls attention to certain expressions in Turner v. State, 153 Ark. 40, 239 S.W. 373, 376, and emphasizes the fact that his place was not equipped with lights and that operations were not carried on at night. The jury, of course, could have inferred that night games were dispensed with because lights would attract public attention. In the Turner case Judge Wood said that the statute was leveled at the specific offense of keeping, conducting, or operating a house or place for the purpose of allowing gambling to be carried on. An instruction told the jury that if it believed Turner was guilty of knowingly permitting a gaming table to be maintained in a certain house 'used and controlled by said defendant', then under the evidence he would be guilty.

From the Turner case, and from statements in Cain v. State, 149 Ark. 616, 223 S.W. 779, and Sorrentino v. State, 214 Ark. 115, 214 S.W.2d 517, it is argued that conviction cannot be upheld unless the defendant had control and supervision of the premises. Since the locale was part of a railroad right-of-way there could not, in appellant's view, be control sufficient to justify an application of the statute. In Tully v. State, 88 Ark. 411, 114 S.W. 920, 921, the state was required to show that the defendant was interested in the poker game 'as banker or exhibitor', and this case is cited in support of the contention that control of the premises was essential. But the statute in that case, Kirby's Digest, § 1732, is not the enactment relied upon in this appeal. It appears as Ark.Stats. § 41-2003.

In the instant case the thing prohibited, as has been pointed out, is keeping, conducting, or operating any gambling house, or place where gambling is carried on.

It is not unreasonable to believe that the lawmakers, in adding the words [that have been italicized, for the purpose of this opinion] contemplated extraordinary circumstances where the thing sought to be prohibited,--that is, gambling at the invitation of one operating for profit--might be at a place as distinguished from a house. Here the place had been operated regularly for a long time. It was known to large numbers, and the location was near enough to Crossett and West Crossett to satisfy the purpose of the operator. Appellant did not own the land, but insofar as his patrons were concerned he controlled it. This was sufficient.

Affirmed.

HOLT, Justice (dissenting).

The indictment charged Everett Colbert, Negro appellant, as follows: 'The Grand Jury of Ashley County, in the name and by the authority of the State of Arkansas, accuse Everett Colbert of the crime of Keeping Gambling House committed as follows, to-wit: The said Everett Colbert in the county and State aforesaid, on the 15th day of July, A.D. 1950 did unlawfully keep, conduct and operate a gambling house in Violation of Title 41-2001, Ark.Stats.1947, and against the peace and dignity of the State of Arkansas.'

Material facts appear not in dispute.

Appellant and a number of other Negroes gathered in a stretch of woods located on the west boundary of the right of way of the log railroad running north and south from the timber holdings of the Crossett Lumber Company. This stretch of woods constituted the 'gambling house,' approximately one mile from human habitation and inaccessible by automobile. There were several tables or benches, consisting of two planks nailed between posts or trees at this particular site, and had been for a number of years. These tables were utilized for 'crap shooting,' or playing dice, for money and one of these tables appears to have been set up and operated by appellant.

On these facts appellant was convicted of a felony under § 41-2001, Ark.Stats.1947 which provides: '41-2001. Keeping gambling house--Penalty.--Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house, or place where gambling is carried on, or who shall set up, keep or exhibit, or cause to be set up, kept or exhibited, or assist in setting up, keeping or exhibiting, any gambling device, or who shall be interested directly, or indirectly in running any gambling house, or in setting up and exhibiting any gambling device or devices, either by furnishing money, or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and on conviction thereof, shall be confined in the State penitentiary for not less than one (1) year nor more than three (3) years. (Acts 1913, No. 152, § 1, p. 613; C. & M. Dig., § 2632; Pope's Dig., § 3322.)'

Another section of the statute, 41-2003, provides: '41-2003. Keeping gaming device--Penalty.--Every person, who shall set up, keep, or exhibit any gaming table, or gambling device, commonly called A. B. C., E. O., roulette, rouge et noir, or any faro bank, or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing any game of chance, or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined in any...