Simon v. State

• Decision Date: 26 September 1921
• Docket Number: 118
• Citation: 233 S.W. 917,149 Ark. 609
• Parties: SIMON v. STATE
• Court: Arkansas Supreme Court

233 S.W. 917

149 Ark. 609

SIMON v. STATE

No. 118

Supreme Court of Arkansas

September 26, 1921

Appeal from Garland Circuit Court; Scott Wood, Judge; affirmed.

Judgment affirmed.

Martin Wootton & Martin and C. Floyd Huff, for appellant.

Players in a card game are accomplices. Crawford & Moses' Digest § 2308; 16 C. J. 670 to 672; 36 Ark. 126; 90 Ark. 460; 130 Ark. 353; 141 Ark. 421; 129 P. 78; 43 L. R. A. (N. S.) 546 and cases cited.

A conviction in a felony case cannot be had upon the uncorroborated testimony of an accomplice. Crawford & Moses' Digest, § 3181.

Whether or not a witness is an accomplice of the accused is a mixed question of law and fact. 51 Ark. 115; 63 Ark. 462; 111 Ark 299. And defendant was entitled to have the question submitted to the jury under proper instructions. Appellant's requested instruction No. 3 on the subject was refused by the court, which was error under the following decisions: 50 Ark. 526; 64 Ark. 247; 130 Ark. 353; 128 Ark. 452.

In the actions of the State's witnesses there were all the necessary elements of standing by, aiding, abetting, assisting, advising and encouraging the appellant in the perpetration of the crime, to make them accomplices under § 2308, C. & M. Digest, and the necessary "affirmative act" suggested in 141 Ark. 421.

J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

Appellant's requested instruction No. 3 was properly refused. Participants in a card game are not accomplices. The test of whether or not a witness is an accomplice is, could he himself have been indicted for the offense, either as principal or accessory? 1 R. C. L. § 3, p. 157; Cyc. 445-6; 16 C. J. p. 671. The State's witnesses, by participating in the gambling being conducted, violated § 2639, C. & M. Digest, thereby committing a misdemeanor only. Sec. 3181, C. & M. Digest, requiring corroboration of testimony of accomplices, applies only in felony cases.

Mere knowledge that a crime is being committed cannot constitute one an accomplice, nor can the concealment of such knowledge. 1 R. C. L., Sec. 3, pgs. 157-8.

Where the facts are not disputed, and the acts and conduct of the witnesses admitted, the question then becomes one of law for the court to say whether or not those acts and facts make the witness an accomplice, and is not a jury question. 1 R. C. L., § 3, p. 158.

One who is permitted to play a game of chance upon the premises of another is not an accomplice, where the owner is prosecuted for permitting gambling. 6 Ky. L. Rep. 517; 6 Ky. L. Rep. 217; 43 Mont. 427; 117 P. 95. By analogy see 16 C. J. § 1388, p. 681; 41 Tex.Crim. 358, 57 S.W. 850; 165 N.Y.S. 386; 16 C. J. note 24, p. 680; 155 Mass. 287, 29 N.E. 512; 203 N.Y. 73, 96 N.E. 362.

OPINION

WOOD, J.

The appellant was convicted under an indictment which charged that he "unlawfully and feloniously did keep, conduct and operate, and was interested directly and indirectly in keeping, conducting and operating a gambling house or place where gambling was carried on in a certain building on Central Avenue in the city of Hot Springs, Arkansas, and known as the Arkansas Cigar Store, and was interested directly and indirectly in keeping, conducting and operating said gambling house by furnishing money and other articles for the purpose of carrying on said gambling house, against the peace and dignity of the State of Arkansas."

The facts are substantially as follows: The appellant rented a building in the city of Hot Springs from A. B. Gaines, paying as rent therefore the sum of $ 200 per month. The first floor was occupied as a cigar store, and its rental value was estimated at $ 125 per month. The proportion of the rental value of the upper rooms was estimated at $ 75 per month. The upper rooms had in them sixty or seventy chairs, pool tables, billiard tables, two or three round tables, desk, lounge, a kitchenette and a place with periodicals where one could sit down and read.

Among the witnesses who testified for the State were L. D. Cooper, Leon Dinkelspiel, Matt Picchi, Mose Klyman and E. N. Roth. Their testimony does not differ in essential particulars, and is to the effect that they had frequently been in appellant's place of business and had participated in card games played there for money. Each participant in the game of cards paid the sum of $ 6 for his seat at the table. Players did not pay for their checks when received. It was the custom of the place to have a settlement at periods more or less indefinite. No one was permitted to the rooms except invited guests. The company was select and the participants high-class business men. The $ 6 paid for the seat and the privilege of participating in the game also entitled the participant to refreshments such as sandwiches, soft drinks and other things to eat and drink. Usually the players would buy $ 100 worth of checks from which the appellant would deduct $ 6, which was the charge for the privilege of participating in the games, and there was no additional charge for the other accessories mentioned above. These were furnished by the appellant free of charge. There was a charge of $ 1 a deck for the cards to those who participated in the game of poker. No charges were made for the cards used in bridge or whist. There were sometimes as many as eight people seated at a table participating in the game of poker and at different tables as many as twenty people playing poker at one time in separate games. The poker games were played for money. The largest loss that the witnesses had ever known any of the participants to sustain was from $ 100 to $ 150. The witnesses participating in the poker games testified that the $ 6 paid for the "seats" was for the purpose of enabling appellant to conduct the business there and to "keep it open and going."

The appellant requested the court to instruct the jury as follows:

"You are instructed that an accessory is one who stands by, aids, abets, assists, or who, not being present, hath advised and encouraged the perpetration of the crime. And if you find from the evidence in the case that the witnesses L. D. Cooper, Leon Dinkelspiel, Matt Cicchi, Mose Klyman and E. N. Roth, who have testified, contributed money to the defendant, in order to induce or enable him to conduct a gambling house, then each of them so contributing thereby became and was an accessory. And if you find that they are accessories or accomplices as above defined, then you are further instructed that the defendant can not be convicted on their testimony alone. Before one can be convicted on the testimony of an accomplice, there must be corroboration by other evidence, tending to connect the defendant with the commission of the offense. Nor can one accomplice corroborate another; but before the testimony of an accomplice can be considered by you at all as evidence of guilt, there must be other evidence before you, not given by an accomplice, which tends to connect the defendant with the commission of the offense charged. And unless there be other evidence independent and apart from any given by one or more accomplices, tending independently of any matters testified to by such accomplices, one or more, to connect the defendant with the offense charged, you should find him not guilty."

The court refused the appellant's prayer, to which ruling the appellant duly excepted.

The only error of which the appellant complains here is predicated upon the ruling of the court in refusing the above prayer. There was no error in the ruling of the court. Section 2632, C. & M. Digest, provides as follows "Every person who shall keep, conduct or operate, or who shall be interested directly or indirectly in keeping, conducting or operating a gambling house or place where gambling is carried on, * * * or who shall be interested...