State v. Cassady, 983

• Decision Date: 01 March 1948
• Docket Number: 983
• Citation: 67 Ariz. 48,190 P.2d 501
• Parties: STATE v. CASSADY
• Court: Arizona Supreme Court

190 P.2d 501

67 Ariz. 48

STATE v. CASSADY

No. 983

Supreme Court of Arizona

March 1, 1948

Appeal from Superior Court, Apache County; J. Mercer Johnson, Judge.

R. W Cassady was convicted of conspiracy to violate statute making it a misdemeanor to operate a slot machine, and he appeals.

Judgment affirmed.

Earl Platt, of St. Johns, for appellant.

M. V Gibbons, Co. Atty., of St. Johns, for appellee.

La Prade, Justice. Stanford, C. J., and Udall, J., concur.

OPINION

La Prade, Justice.

This is an appeal from a judgment and sentence after a verdict finding the defendant-appellant guilty of a conspiracy to violate the statute making it a misdemeanor to operate a gaming device known as a slot machine. The information charged the defendant with four counts of conspiracy. The material portions of the third count read as follows:

"That Defendant, R. W. Cassady, on or about the 20th day of November, 1946, and before the filing of this Information at and in the County of Apache, State of Arizona, did then and there commit the crime of conspiracy, a felony, committed as follows, to-wit:

"That during all the times mentioned in this Information one R. E. Rockwell was the owner and operator of what is known as the 'Old Stage Station', situated adjacent to U. S. Highway No. 66, in Apache County, Arizona.

"That on or about the date last aforesaid, Defendant, R. W. Cassady did then and there wilfully, unlawfully and feloniously agree, and conspire with the said R. E. Rockwell to operate and conduct within said 'Old Stage Station' certain gaming by means of devices commonly known as slot machines; in violation of Section 43-2701, Arizona Code Annotated, 1939.

"That thereafter and on or about the said 20th day of November, 1946, Defendant R. W. Cassady and the said R. E. Rockwell in furtherance of, and pursuant to said conspiracy did operate two slot machines in violation of the statute aforesaid and Defendant, R. W. Cassady did periodically and on or about the date last aforesaid, and at the place above named, take from said slot machines so operated by Defendant R. W. Cassady and said R. E. Rockwell, various and sundry sums of money; the exact sums and amounts being to the County Attorney unknown, which said sums of money when so taken from said slot machines were divided between Defendant, R. W. Cassady and the said R. E. Rockwell on a 40-60 basis; Defendant taking 60% and said R. E. Rockwell retaining 40%.

"In violation of Section 43-1101, Arizona Code Annotated, 1939."

Counts 1, 2, and 4 were of similar tenor. In count 1 defendant was alleged to have conspired with one A. J. Berry; in count 2 with Bertha Riggs. Count 4 was quashed at the time of arraignment.

At the close of the state's case, defendant moved for a directed verdict as to counts 1, 2, and 3 upon the ground that there had been no testimony other than that of co-conspirators and that it had not been corroborated. After the court had indicated to counsel its inclination to grant the motion, the state moved the court for permission to reopen its case, which was granted over the objection of defendant. After the state had rested its case for the second time, defendant, again renewed his motion for a directed verdict, which was granted as to count 1, upon the ground and for the reason that there had been no proof offered to corroborate the testimony of the co-conspirator Berry, and denied as to counts 2 and 3. The order of the court granting defendant's motion for a directed verdict of acquittal on count 1 was made in the presence of the jury, but the court did not at that time submit, and require the jury to return, a verdict of not guilty. The not-guilty verdict was not submitted to the jury until after it had returned a verdict of not guilty on count 2 and a guilty verdict on count 3.

The co-conspirator Rockwell testified that he purchased his place of business in March, 1943, at which time he acquired with the business a slot machine. At this point his testimony goes as follows:

"Q. And later did you get some more machines? A. No, sir, I was running my own machines and later after I opened up the place I had to put in Mr. Cassady's.

"Q. Why? A. The Sheriff said he would rather one man would handle all of the machines. Therefore Mr. Cassady had been to my place and the Sheriff came and so I let Mr. Cassady handle them.

"Q. How many machines did he bring to your place? A. One at first.

"Q. And later? A. Brought another one.

"Q. And then you had two machines that were brought there by Mr. Cassady, is that correct? A. That is correct." (Emphasis supplied.)

He testified further that during all of this time the machines were repaired by defendant Cassady; that money was continuously gambled into them by the traveling public; that defendant came about every two weeks and removed the money constituting the machine's winnings, leaving 40% to the witness and taking the other 60%; and that at each time defendant removed the money from the machines he left a written memorandum indicating the amount of the take and its division. With reference to this division the witness testified as follows:

"Mr. Greer: This division of the money as appears in these exhibits, when did you first divide the proceeds from the slot machines? A. We started dividing as soon as he put the machines in my place in '43. We started the same division and carried it all of the way through.

* * *

"Mr. Greer: Did you at some time, Mr. Rockwell, have a conversation with Mr. Cassady as to the manner you would divide the money from the slot machines, just answer yes or no? A. No, sir.

"Q. Was there any statement made by him when the slot machines were put into your place? A. Yes, sir.

"Q. When was that? * * * A. '43, yes, sir. * * *

"Q. What was said at that time? * * * A. He said he would take 60% and leave me 40%.

"Q. Who was to operate them? A. Mr. Cassady.

"Q. Where were they to be left? A. At my place of business.

"Q. Was that arrangement carried through until you ceased operation? A. That is right, yes, sir. * * *

"Q. Who had the keys to the machines? A. For the first, I will say, six or seven months Mr. Cassady after he and I agreed to put the machines in he carried the keys and then he turned them over to me later; but he carried them for quite a while because I refused to take them.

"Q. How long did he have the keys? A. Two and a half years and maybe more, sir, I don't remember." (Emphasis supplied.)

The witness again testified with reference to the date when the machines were installed by defendant, as follows:

"Q. And at that time did you testify that he told you on what basis you would divide the money from them? A. I did.

"Q. And is that the basis you used in operation? A. That is right." (Emphasis supplied.)

Mrs. Rockwell, wife of the alleged co-conspirator R. E. Rockwell, admittedly a co-conspirator but not charged, testified to the same effect, and in addition identified six checks that she had given to defendant Cassady made payable to him and identified by her as indorsed by him, which checks were given to Cassady for purchase of change. These checks were admitted in evidence over the objection of defendant, his objection being that she was permitted to testify as to the contents of the documents before they were admitted in evidence. In identifying the documents she explained that oftentimes it was convenient to purchase change from defendant at the time he came to empty the machines, it being necessary to have change available for customers who desired to gamble money into the machines.

As above indicated the court did not rule on the motion for a directed verdict when first made, but permitted the state to open its case and proceed further. The state then called a witness, one Noel Tiffin, who testified that for some months prior to November, 1946, he had been employed by the Rockwells as a mechanic on a commission basis; that on three different occasions he had talked with Cassady at the Rockwell's place of business; and at the time of each of these conversations he had watched Cassady check the machines, remove the money therefrom, and "give Mr. Rockwell part of it, or he received a check for his part." Neither the name of Mrs. Rockwell nor Tiffin was indorsed upon the information at the time these witnesses were called and permitted to testify. The defendant objected to the competency of their testimony upon the ground that their names had not been indorsed upon the information (as required by section 44-759), but made no application to the court to have the names of the witnesses indorsed on the information. The county attorney at that time disclosed to the court that he had on the previous day furnished counsel for defendant with the names of these witnesses. Upon this showing the court overruled the objection and permitted the witnesses to testify. Prior to testimony of these witnesses, counsel requested a recess to permit him to examine these witnesses, which request was denied. The court advised counsel that if at the close of their testimony it appeared that defendant needed a recess to meet the testimony the same would be granted. The rule is that "No continuance shall be allowed because of the failure to indorse any of the said names unless such application was made at the earliest opportunity and then only if a continuance is necessary in the interest of justice." No further request was made for a recess or continuance. A person whose name is not indorsed is not absolutely disqualified from being a witness.

"* * * Should a witness be called whose name is not endorsed on the information, the defendant cannot be heard to complain if he does not announce surprise and is not able to convince the court that in view of all the...