Herr v. Commonwealth

• Decision Date: 02 March 1906
• Parties: HERR v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

91 S.W. 666

HERR v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 2, 1906

Appeal from Circuit Court, Jefferson County, Criminal Branch.

"Not to be officially reported."

William Herr was convicted of permitting a game of craps to be played on his premises, and appeals. Affirmed.

Edwards & Ogden, for appellant.

SETTLE J.

The appellant was indicted by the grand jury of Jefferson county for the offense of suffering and permitting a game of craps to be set up, conducted, kept, and exhibited in that county on premises in his occupation and under his control; he being at the time a retailer of spirituous liquors.

The only part of the indictment we deem it necessary to make a part of this opinion is as follows: "The said Wm. Herr in the said county of Jefferson, and on the -- day of March 1905, and within twelve months next before the finding of this indictment, unlawfully did suffer and permit a certain game of dice known as 'craps,' at which money was won and lost, to be set up, conducted, kept, and exhibited in the house and on premises in his occupation and under his control, No. 701 West Green street, in the city of Louisville, in which house and premises the said Wm. Herr was then and there a regular licensed retailer of spirituous liquors, contrary to the statutes in such cases made and provided, and against the peace and dignity of the commonwealth of Kentucky." Upon his trial under this indictment in the criminal division of the Jefferson circuit court appellant was found guilty by verdict of a jury, and his punishment fixed at a fine of $500. Upon the return of the verdict the court entered judgment in behalf of the commonwealth against appellant for the amount of the fine assessed against him by the jury and costs, and in and by the same judgment deprived him of his license to sell spirituous liquors. Appellant was refused a new trial, and he now insists that the judgment of conviction from which he has appealed should be reversed, for the several reasons set forth in his motion and grounds for a new trial.

One of his grounds of complaint is that incompetent evidence was admitted by the court upon his trial. A careful examination of the bill of evidence convinces us that this complaint is without merit, for no incompetent evidence appears to have been admitted.

Appellant further complains that there was no evidence to support the verdict, and for that reason, if for no other, the court should have peremptorily instructed the jury to acquit him. We cannot sustain this contention, for there was evidence from which the jury were authorized to find appellant guilty of the offense charged in the indictment.

It was proved by the witnesses for the commonwealth that he owned and kept a saloon at 701 Green street--that is, at the corner of Seventh and Green streets--that spirituous liquors were sold by him therein, and that he had license to sell spirituous liquor. Also that there were two rooms connected with and and a part of his saloon, in one of which cards were played, and in the other a crap game conducted, at which money was bet, won, and lost. It was further proved that about 100 men, principally negroes, were in these rooms at the time the witnesses for the commonwealth visited the place, and that many of them were engaged in the crap game both white and black, and that drinks were carried from the saloon to persons engaged in the games. While no witness testified to seeing appellant in the room where the trap game was in progress, it is patent that the game was so conspicuously conducted, the number of gamblers so large, and the winning and losing of money so openly engaged in, that it was impossible that it could have escaped the notice and knowledge of appellant as proprietor of the saloon and rooms, and by the statute under which he was indicted the proof was sufficient to create the presumption that the operating of such games was with appellant's consent. At any rate, it was the province of the jury to determine from the proof whether he knew what was going on upon the premises under his control.

Another of the grounds for a new trial was that the lower court did not properly instruct the jury. No criticism of the instructions is made in the brief of counsel, and we assume that the sole objection to them rests upon the theory that only a peremptory instruction directing the jury to find for ...