Coon v. State

• Decision Date: 06 October 1913
• Citation: 160 S.W. 226,109 Ark. 346
• Parties: COON v. STATE
• Court: Arkansas Supreme Court

160 S.W. 226

109 Ark. 346

COON v. STATE

Supreme Court of Arkansas

October 6, 1913

Appeal from Garland Circuit Court; Calvin T. Cotham, Judge affirmed.

Judgment affirmed.

C Floyd Huff, Bradshaw, Rhoton & Helm, and X. O. Pindall, for appellant.

1. The indictment should have been quashed because of the presence in the grand jury room, while they were taking testimony and investigating the case, of an attorney employed by the prosecuting witness for the purpose of prosecuting appellant. Kirby's Dig., § 2211; 7 Tex.App. 519; 126 Pa.St. 53 12 Am. St. Rep. 894, and notes at page 900.

2. Under the evidence adduced in this case, if any crime was committed, it was the crime of robbery, and not larceny, and the court erred in refusing to instruct the jury at appellant's request, that, if they so found, they should acquit.

3. In view of the understanding of appellant's counsel that the depositions of witnesses to be used at the trial of the Ryan case could also be introduced and read in evidence in this case, and their understanding that such order had been entered of record, and so believed until after the trial of this case had begun, appellant was placed at a great disadvantage in not being permitted to introduce said depositions, and it was reversible error to refuse appellant's motion for a postponement, the same being a manifest abuse of discretion.

4. It was reversible error to allow the criminal conduct and declarations of one of the conspirators to be admitted in evidence against appellant, such conduct and declarations being after the alleged criminal enterprise was ended. Id. 467; 92 Ark. 592; 67 Ark. 235; 59 Ark. 430.

5. It was error to permit the paid attorney, instead of the prosecuting attorney, to close the argument on the part of the State. Kirby's Dig., § 2388.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. There was no error in overruling the motion to quash the indictment. The attorney whose presence is complained of was present with the grand jury, not only with the consent of the prosecuting attorney, but also at his request. 62 Ark. 516; 108 Ark. 89; Tiner v. State, 109 Ark. 138.

2. The testimony of the witness, Fox, does not disclose any of the elements of robbery, but the taking of the money falls within the terms of the larceny statute. 61 Ark. 594, 597.

3. In the light of the evidence that counsel for the State signed no stipulation that the depositions taken in the Ryan case could be used in the other cases growing out of this transaction, including this, but announced at the time that the order to take depositions was made that the State would enter into no stipulations, and that appellant's counsel themselves announced that they desired to deal at arm's length, there was no abuse of discretion in denying the motion for a postponement. Moreover, the evidence thus sought to be introduced was merely cumulative. 94 Ark. 172; Id. 545, 547.

4. There was no error in admitting evidence and declarations of coconspirator. The record shows that the design of the conspirators was not ended but in process of consummation when Witt stated to Fox that appellant had just lost the $ 46,700. Moreover, there was no proper exception to this evidence, no objection pressed to a ruling. 74 Ark. 256; 84 Ark. 128, 130; Easley v. State, 109 Ark. 130.

5. The State was entitled to the closing argument. If the prosecuting attorney elected to have associate counsel in the prosecution to close the argument instead of doing so himself, that was a matter for him to decide, and appellant has no cause for complaint.

OPINION

MCCULLOCH, C. J.

The grand jury of Garland County returned an indictment against appellant, charging him with the crime of grand larceny, committed by stealing, taking and carrying away $ 20,000 in paper money, the personal property of one Frank P. Fox, and on a trial before a jury the defendant was convicted and sentenced to the penitentiary.

The facts of the case, as adduced from the State's testimony accepting it as true in its strongest light, are about as follows: Fox resides in the State of Indiana, and is said to be a man of considerable wealth. He had an acquaintance in that State named Worth, who was also an acquaintance of appellant. The three met in a bar room in Terre Haute, Ind., and appellant (who was introduced to Fox under the name of Ward) reported to Fox that his brother-in-law, one Denton, was assistant manager of the Indiana Club, a gambling house in the city of Hot Springs, Arkansas; that Denton was dissatisfied with the management because he had not been paid his full share of the profits, and had arranged with the dealer of the roulette wheel to "fix" the wheel so that a player would be sure to win, and that all that was needed was some man of wealth to play the wheel and secure large winnings. He said they wanted to interest a man known to be wealthy so that his playings would appear to be in good faith. Appellant and Worth proposed to Fox that he go into the scheme as the wealthy man of the party, and that the winnings would be divided. Fox readily accepted the offer, and the trio at once departed for the field of operations at Hot Springs. When they reached the latter place, they were met at the train by a man who gave his name as Joe Denton, but whose real name was "Jimmie Johnson," and who, according to the theory of the State, was a party to the scheme to swindle Fox. Denton conducted the party up to the hotel, and, after they had registered, all of them repaired to the club rooms late in the afternoon for the purpose of practicing the fraudulent game on the roulette wheel so that when the real play came off at night they would know how to play the right numbers. The dealer of the wheel was into the scheme, and Fox and Worth were fully instructed as to what numbers to play. After the practice was over, the party went back to the hotel, and returned to the club rooms after the evening meal for the purpose of starting the play. Fox purchased $ 20,000 worth of chips, and gave his check on a bank in Illinois. He began playing the wheel, and in a few minutes -- not over ten or fifteen minutes, according to his statement--he won $ 26,700, without sustaining any losses, and upon signal from Denton, quit playing, it having been understood between them that the winnings should not be too large for fear that the management would suspect the trick. This gave him chips, including his winnings and his original stake, aggregating the sum of $ 46,700, and he started to cash the chips. When the money was being counted out to him, he asked for the return of his check, and about that time a man calling himself Wilt, and claiming to be the manager of the club, walked in and said, "What check is that? Is it an out-of-town check?" and, upon being informed that it was, said, "I thought I told you not to take any more out-of-town checks." Some argument ensued between Wilt and the party, composed of Denton, Fox, Worth and appellant, about the check being accepted contrary to the rules of the club, and Wilt proposed that he would give a due bill for the amount owing to Fox ($ 46,700), and pay the same as soon as the check should be paid. Fox demurred to this on the ground that it would take too long to send the check through various banks for collection, and proposed that the manager hold the check, and he keep the due bill until he could go back to Indiana and bring down $ 20,000 in money as an evidence of the fact that his check had been given in good faith, and would have been paid. This plan was agreed upon, and Fox made an endorsement on the back of his check, showing that the same was not to be deposited for collection. He went back to Indiana, secured the $ 20,000, and returned in company with Worth. When they reached Hot Springs they again repaired to the gambling room (the same parties, Fox, Worth, Denton and appellant, being present), and Fox produced the $ 20,000, and also presented his due bill at the same time for payment. He counted the money in the presence of Wilt, who claimed that he had followed the count, and that only $ 18,500 was in the roll, and he took it out of Fox's hands--"snatched it," as Fox states--and proceeded to count it himself, and after verifying the amount and finding that there was $ 20,000 in the roll, placed it in a drawer. Wilt then proceeded to count out the money for the purpose of cashing the due bill, but found, or pretended to find, that he was short $ 10,000 of enough money to pay the due bill, whereupon he offered to give his check for the $ 10,000, which Fox, upon the suggestion of Worth, declined to accept for the reason that the manager had declined to accept his check. Wilt then proposed that the party wait while he sent out to the bank and got a $ 10,000 check cashed, and this was agreed upon. They went into an adjoining room, and spent the time of the delay in drinking wine. After they had drunk a glass or two, Denton handed the due bill to appellant and said, "You don't drink much; take this order and go in there and talk with the old man" (meaning the so-called manager, Wilt). Appellant left the room as he was bidden, and, after being absent a short time, returned hurriedly into the room, and as he came through the door, he was crying and said, "What will we do? I lost $ 26,000 of that money." Denton struck him a light blow, and the operator of the wheel came through about that time, and said, "You damn fool, what did you play that wheel for? I had the works in my pocket; no wonder you lost. Get out of here; we are done with you forever." Whereupon appellant left the room and was heard of no more until he was arrested in Chicago, except a brief conversation held with Fox a little while afterward at...