Metcalf v. State
| Decision Date | 02 October 1959 |
| Citation | 9 McCanless 598,329 S.W.2d 824,205 Tenn. 598 |
| Court | Tennessee Supreme Court |
| Parties | John METCALF and Alex Calhoun, v. STATE of Tennessee. 9 McCanless 598, 205 Tenn. 598, 329 S.W.2d 824 |
James C. Cunningham, Clarksville, for plaintiff in error.
William D. Grugett, Asst. Atty. Gen., for the State.
Metcalf and Calhoun were convicted of larceny by trick in 'playing a game named Three Card Monte'. Those who lost substantial sums of money in playing this game with the defendants were three soldiers stationed at Fort Campbell. The insistence made on this appeal by these defendants is that the evidence is insufficient, as a matter of law, to sustain the conviction.
The evidence justifies the conclusion that gamblers, more or less professional, on the pay-day of the soldiers at Fort Campbell arranged to pass the entrance gate of this military post at a time when these soldiers were leaving with their just received pay either for Clarksville or in the other direction for a town in Kentucky.
The evidence in this case further establishes it as a fact that these defendants arranged to be at one of these gates on the pay day involved here, and that it was their purpose to pick up some of these soldiers on the pretense of giving them a ride to Clarksville. Their real purpose was to induce these soldiers to engage with them on the way to Clarksville in a card game, whereby they would obtain the money of these soldiers. These gambler defendants accomplished that purpose. But just afterwards, they were apprehended by officers who, in response to complaints by the commanding officers at the military post, were seeking to apprehend gamblers engaged in so procuring the money of these soldiers on pay day.
The card game in which these gamblers on that occasion induced these soldiers to engage with them is known as 'Three-card monte'. It
41 Words and Phrases, Three-Card Monte, page 598.
In the case at bar three Aces were used. Two of them were black. The other was red. The game consisted of a placing of these three cards face downward on some substance, here a pillow, after a bet by the dealer (gambler) that the soldier would not pick up the red card. The trick by which it was intended to defraud the soldier was in the skillful manner in which the dealer placed the cards on the pillow in the presence of the victim, who, because of the very deceiving manner in which the cards were handled, was falsely lead to believe that he saw where the red card was placed on the pillow. Naturally he picked up that card. But in every instance, as to each of the three soldiers, it turned out to be one of the two black cards. The red card was, however, on the pillow.
In Defrese v. State, 50 Tenn. 53, two conspirators, one of them being the defendant Defrese, and his co-conspirator Smith, sought and procured a ride in the wagon of the prosecutor. As it stopped subsequently Smith got out and walked behind a house. Defrese remarked that Smith had dropped something, and picked from the ground a folded paper in the shape of a 'thumb paper'. After getting back in the wagon he opened it, took a five cent piece therefrom, and re-folded it. Another nickel was concealed in the paper in such a way that it could not be seen. When Smith came back to the wagon he was informed by Defrese that he had lost something, and handed him the folded paper. The reply of Smith was that the paper was valuable and proposed to bet that there was a five cent piece in the paper. They finally persuaded, or intimidated, the prosecutor in betting to the contrary. Of course, he had been led to believe this because he had seen the nickel taken out and no other nickel was observable therein.
The Court held, at page 61, that Defrese was guilty...
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