Johnson v. Commonwealth

Decision Date07 December 1923
PartiesJOHNSON v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Johnson County.

Ben Johnson was convicted of engaging in a game of hazard or chance, and appeals. Affirmed.

W. J Ward, of Paintsville, for appellant.

T. B McGregor, Atty. Gen., and Ed. L. Allen, Asst. Atty. Gen., for the Commonwealth.

THOMAS J.

At the July, 1922, term of the Johnson circuit court, the appellant and defendant below, Ben Johnson, was twice tried and convicted under two separate indictments returned by the grand jury at that term, accusing him of engaging in a game of hazard or chance at which money or other property was bet won, or lost within five years prior to that time, an offense denounced by section 1977 of our present statute. On his arraignment at his second trial he entered a plea of "not guilty," and also one of "former conviction," in support of the latter of which he relied upon his conviction at his trial under the first indictment. Each indictment named eight other persons as participants in the game and jointly guilty with him. Only one other person besides himself is named in both indictments as joint participants. The evidence for the commonwealth on both trials showed that the game or hazard in which defendant and his associates participated was what the witnesses called "stud poker," and that defendant began to play it about 9 o'clock p. m., and continued his sitting until about 1 o'clock a. m. the following morning, a period of about four hours, and that during that time the cards were separately dealt and defendant played for some 75 or more combined contributions, designated by the witnesses as "pots"; that at the end of each deal of the cards the winner would take the pot, and after that another or a new deal would be made with the same result, and that process continued throughout the time defendant was so engaged.

The court on each trial submitted to the jury the guilt or innocence of defendant as a player with the persons named in that particular indictment, and on the second trial wherein the plea of former conviction was interposed this additional instruction was given:

"Cards that are dealt when something of value is bet, and the dealt cards are then played and the winnings are distributed, is a game as used in these instructions."

Defendant objected to that instruction, and also objected to the refusal of the court in not directing his acquittal upon the ground that the first conviction was a bar to the offense of which he was accused in the second indictment, and on this appeal from his second conviction his counsel insist that the entire period of the sitting of defendant, during which he bet numerous times upon the proven hazard, constituted but a single game, whether each deal of the cards was played with the same persons or not, and that, since the unlawful conduct with which he is accused in both indictments occurred at that sitting, his first conviction was a bar to the commonwealth's right to try him under the second indictment. On the other hand, the commonwealth insists that in playing each hand that was dealt, and after determining who was the winner on that deal, each participant was guilty of violating the statute, since he, by so doing, engaged in a "hazard or game on which money or property is [was] bet, won or lost." The court, as will be seen, agreed with the commonwealth, and so instructed the jury, and the propriety of that ruling is the sole question for determination on this appeal. In view of our conclusions, stated below, it will be unnecessary to discuss or determine whether the fact that different persons participated in the betting on the result of different deals would affect the question, although all of them were played at one sitting.

The text in 27 Corpus Juris, 973, in defining the constituent elements of a bet, says:

"A bet is an agreement, between two or more, that a sum of money or some valuable thing, in contributing which all agreeing take part, shall become the property of one or some of them, on the happening in the future of an event at the present uncertain; a promise on the part of each of the betting parties to pay to the other party the amount of his bet if he loses;
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13 cases
  • Randall Book Corp. v. State
    • United States
    • Maryland Court of Appeals
    • 1 Septiembre 1987
    ...while another will hold that every hand dealt in a stud poker game may be separately punished as a gaming offense, Johnson v. Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923). Consistent with its approach in Bell, the Supreme Court held in Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, ......
  • Bretz v. Crist
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 18 Noviembre 1976
    ...may become irresistible." Note, Double Jeopardy: The Reprosecution Problem, 77 Harv.L.Rev. 1272, 1274 (1964); see Johnson v. Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923) (each of 75 hands of poker a separate offense).2 The district court's finding that Count II was dismissed at the defend......
  • People v. Markham, 57205
    • United States
    • Michigan Supreme Court
    • 27 Agosto 1976
    ...involved several victims' or 'where a single transaction is divisible into chronologically discrete crimes. E.g., Johnson v. Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923) (each of 75 poker hands a separate 'offense').' See Ashe v. Swenson, 397 U.S. 436, 448, 451, 90 S.Ct. 1189, 1197, 1198,......
  • Ashe v. Swenson
    • United States
    • U.S. Supreme Court
    • 6 Abril 1970
    ...permits multiple prosecutions where a single transaction is divisible into chronologically discrete crimes. E.g., Johnson v. Commonwealth, 201 Ky. 314, 256 S.W. 388 (1923) (each of 75 poker hands a separate 'offense'). Even a single criminal act may lead to multiple prosecutions if it is vi......
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