Johnson v. Commonwealth

• Decision Date: 16 June 1911
• Citation: 137 S.W. 1079,144 Ky. 287
• Parties: JOHNSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

137 S.W. 1079

144 Ky. 287

JOHNSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 16, 1911

Appeal from Circuit Court, Fayette County.

S. N Johnson appeals from a conviction. Reversed and remanded.

W. P Kimball and D. C. Hunter, for appellant.

John R Allen, Jas. Breathitt, Atty. Gen., and Chas. H. Morris, for the Commonwealth.

LASSING J.

S. N Johnson was indicted in the Fayette circuit court for setting up and operating a game of chance or contrivance known as a "bird cage." Upon a trial he was found guilty, and given indeterminate sentence in the penitentiary. Conceiving that the court erred to his prejudice in the admission of evidence and failed to properly instruct the jury, he prosecutes this appeal, and seeks a reversal.

The indictment charged that the accused operated a gambling device known as a "bird cage." Upon the trial several of the witnesses for the commonwealth testified that they visited the room over the Equity saloon, in the city of Lexington, where the bird cage was charged to have been operated by the accused, and that there were in this room several other gambling devices, such as a crap table, roulette wheel, and Klondike. Evidence of these other alleged gambling devices was admitted over the objection of appellant's counsel, and the witnesses were permitted to describe the manner in which these various gambling games were conducted. This testimony was likewise objected to. After all of this testimony had been given, the court told the jury that evidence of this character could only be received as evidence in so far as it tended to show that the accused had operated the bird cage. This testimony was neither relevant nor competent. It in no wise tended to illustrate or show that the accused had operated the bird cage. The fact that these other machines or contrivances were in the room might have been received as evidence that the room was being used for gambling purposes; but the accused was not charged with conducting, owning, or controlling a room in which gambling was being carried on. The single charge was that he operated a bird cage. The evidence should have been confined to establishing this charge.

Again over the protest and objection of appellant's counsel, the commonwealth was permitted to prove that the accused had settled and adjusted a claim against him set up in a civil suit for a large sum of money alleged to have been lost to him in a game of...