Commonwealth v. Warren

• Decision Date: 15 May 1894
• Citation: 161 Mass. 281,37 N.E. 172
• Parties: COMMONWEALTH v. WARREN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 281

37 N.E. 172

COMMONWEALTH v. WARREN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1894

COUNSEL

Frederick E. Hurd, for the Commonwealth.

Owen A Galvin, for defendants.

OPINION

LATHROP, J.

The defendants, five in number, have been convicted, under Pub.St. c. 99, § 10, as amended by St.1887, c. 448, § 2, of being present in a common gaming house when gaming implements were found there. At their trial they asked for three instructions: (1) That there was no evidence that the building described in the complaint was unlawfully used as and for a common gaming house, for the purpose of gaming for money or other property; (2) that there was no evidence that idle or dissolute or other persons resorted to the premises for that purpose; (3) that there was no evidence that the defendants were present in a place where implements of gaming were found.

1. There was abundant evidence that the building in question was a common gaming house. It was protected by a thick oak door with brass trimmings, which had on the inside an oak bar which fitted into staples attached to the door case on each side of the door. The officers who visited the building were unable to gain admittance by knocking. They then attempted to break down the door with a sledge hammer, but failed. Some one inside pushed aside a slide covering a hole in the door and looked out. After some delay, one of the defendants opened the door, and the defendants were found in a room of the building, walking about. From this room was a stairway, inclosed in a solid board partition, leading to a room above. Between the ceiling of the lower room and the floor of the room above were found concealed gaming implements, including cards and a deal box used in playing faro. Access to the place of concealment was obtained by removing the riser of the top step of the stairway, which was fastened by a catch. Some one was heard running up this stairway while the officers were trying to enter the building, and, after the officers entered, one of the defendants came down this stairway. There was also evidence that faro is a game played for money, and that it is played with cards similar to those found. See Com. v. Adams, 160 Mass. 310, 35 N.E. 851.

2. There can be no doubt at the present day that the keeping of a common gaming house is an indictable offense at common law. King v. Rogier, 2 Dowl. & R. 431, 1 Barn. & C. 272; King v. Taylor, 3 Barn. & C. 502; Jenks v Turpin, 13 Q.B.Div. 505, 514, 515. But this was once doubted, and it is, perhaps, for this reason that the statute now before us, which was first passed in 1834 (St.1834, c....