Haven v. State

• Decision Date: 29 September 1891
• Citation: 28 N.E. 562,2 Ind.App. 376
• Parties: De Haven v. State.
• Court: Indiana Appellate Court

2 Ind.App. 376

28 N.E. 562

De Haven

v.State.

Appellate Court of Indiana.

Sept. 29, 1891.

Appeal from circuit court, Miami county; J. T. Cox, Judge.

Elmer De Haven was indicted and convicted as a common gambler. Defendant appeals. Affirmed.

S. D. Carpenter, for appellant. Frank D. Butler and A. D. Smith, for the State.

NEW, C. J.

The appellant was indicted and convicted as a common gambler, under section 2085, Rev. St. 1881. The error assigned is that the court erred in overruling the appellant's motion for a new trial. The indictment, omitting the caption and the signature of the prosecuting attorney, is as follows: “The grand jury of the county of Miami and state of Indiana, upon their oath, do present that Elmer De Haven, on the 19th day of January, in the year 1891, at the county of Miami, in the state of Indiana, and on divers other times before and after the said date, and previous to this presentment, did then and there unlawfully frequent for the purpose, and engage therein for a livelihood, gaming with cards, roulette, faro, and dice, at a certain place in said county where gambling was then and there permitted, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.” It was admitted upon the trial by the appellant “that on the 14th of January, 1891, he kept a gambling-room in Peru, Miami county, Ind., and that he frequented the same, and engaged at gaming therein for a livelihood with cards; that said room was situate over a saloon kept by one Michael O'Brien for a period of one year prior to January 14, 1891; that, prior to keeping said room over O'Brien's saloon, he was engaged for a period of one year in keeping a gambling-room over the saloon of Andres & Co. in said city of Peru, and then and there engaged in gaming with cards and other devices for a livelihood.” John W. Young, a witness for the state, testified: “I am a train dispatcher. I am acquainted with Elmer De Haven, the defendant. Have known him for two years last past. I had a conversation with him at or near Dubbs' restaurant a short time after he [De Haven] had been convicted before the mayor, on January 14, 1891, for keeping a gaming-room. I said to him, ‘The mayor gave it to you a little hard.’ He said, ‘Yes; I procured Kenworthy to file the affidavit against me in order to prevent the grand jury from taking action in the matter.’ I know the defendant frequents gambling-houses. He has ever since I have known him been running or frequenting gambling-rooms. Every time I have seen him he was either eating his dinner, or on the street or in the gambling-room.” Thomas Pierce, a witness for the state, testified: “I know the gambling place kept over the saloon of Michael O'Brien, in the city of Peru. I saw De Haven, the defendant, about the place. I owned the ‘take off.’ I was away from home most of the time. De Haven managed and controlled the place for me, and handled the money for me, from the time the room was opened until the 14th of January, 1891. John Monning, a witness for the state, testified: I know the gambling-room over O'Brien's saloon, in the city of Peru. The defendant, De Haven, managed and controlled it up to January 14, 1891. I think Thomas Pierce was the owner of the place and furniture.” Thomas Kenworthy, a witness for the state, testified: “I am the deputy-marshal of the city of Peru. I am acquainted with the defendant, De Haven. He asked me on January 14, 1891, to file an affidavit against him for keeping a poker and dice room. He said he played poker and dice. I filed an affidavit against him, as he requested, before the mayor, and arrested the defendant upon a warrant issued by the mayor upon that affidavit, on January 14, 1891. I do not know anything about what business the defendant is engaged in or follows for a livelihood.” Jesse S. Zern, on behalf of the appellant, testified, in substance, that he had been the mayor of the city of Peru since May, 1889; that the appellant was, on the 14th of January, 1891, arrested upon a warrant issued by him as such mayor, upon an affidavit made by Thomas Kenworthy, charging the appellant with keeping a gaming-house. Said affidavit, omitting the caption and jurat, reads as follows: “Thomas Kenworthy, being duly sworn, on his oath deposes and says that on the 13th of January, 1891, and on divers other days prior to the filing of this affidavit, in the county of Miami and state of Indiana, Elmer De Haven did then and there unlawfully keep a room to be used and occupied for gambling, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.” It further appears from the record that the appellant was, upon said affidavit, arraigned before said mayor, and thereto entered a plea of guilty, and was fined in the sum of $25.

The appellant's ...