James v. State
| Decision Date | 11 March 1921 |
| Docket Number | 23,828 |
| Citation | 130 N.E. 115,190 Ind. 629 |
| Parties | James v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied June 10, 1921.
From Marion Criminal Court (50,747); James A. Collins, Judge.
Prosecution by the State of Indiana against Otto James. From a judgment of conviction, the defendant appeals.
Affirmed.
Fred R Bonifield and Robbins & Weyl, for appellant.
U. S Lesh, Attorney-General, and A. G. Cavins, for the state.
Appellant was prosecuted under § 2466 Burns 1914 (Acts 1905 p. 584, § 557), upon an affidavit charging that at a time and place stated he did unlawfully keep a certain building "to be used for gaming, and * * * unlawfully and knowingly permit Clay Oliver, Forrest Oliver, Thomas Hewett and others unknown, to play at certain games for money," etc. Having been found and adjudged guilty, he filed his motion for a new trial for the alleged reasons that the finding and decision was not sustained by sufficient evidence, and was contrary to law, which motion was overruled and the appellant excepted. Appellant concedes the sufficiency of the affidavit, but denies that the offense charged was proved.
The statute provides that "whoever keeps a building * * * to be used or occupied for gaming, or knowingly permits the same to be used or occupied for gaming * * * shall, on conviction, be" punished as therein provided.
There was evidence that the police found that crap shooting for money was going on in a dining room in the rear of a pool room operated by appellant's brother; that the police officers rushed into the room and arrested nineteen persons including appellant, and that six of them, including appellant, pleaded guilty to the charge of gambling and were each fined $ 5 and costs; that all of them were released on bond and two hours later, that same evening, the police broke into the same room when dice was being thrown and when money was on the table, seized the dice, money, and the box, and again arrested ten men, including appellant, who was in the room when the police broke in both times; appellant testified that the men in the room were "gambling," and that he was arrested and fined for gambling the first time. A witness testified that appellant has a pool room there, and that the police came in the back way and broke through the door, and one of them picked up three half dollars from the table; that "one of the James boys" had a big roll of greenbacks; and it was testified that appellant's brother at the time was out in the pool room attending to business; the witness stated that appellant has a pool room there, and soft drinks, and that this was in the second room back of the pool room; that Forrest Oliver was there and was convicted on a plea of guilty; and that Thomas Newitt was there the second time and he pleaded guilty. The lieutenant in charge of the police, who made the second raid that evening, testified that he asked appellant who was the proprietor of the place and appellant said he was, and that he asked appellant, and he said it was his place. It was also testified that Martin Monohan and Allen McKenzey were there that night, and that they were gambling. Nothing was proved as to who were the...
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