State v. Duffy
| Decision Date | 15 December 1914 |
| Citation | 83 S.E. 990,75 W.Va. 299 |
| Parties | STATE v. DUFFY. |
| Court | West Virginia Supreme Court |
Submitted November 17, 1914.
Syllabus by the Court.
The matter of continuance is within the sound discretion of the trial court, subject, however, to review; and this court will not reverse for refusal to continue a case on account of an absent witness, when it appears that the complaining party has not used proper diligence to have his witness summoned.
Failure to have summons issued for such witness until the day before the case is to be tried shows lack of proper diligence.
Points of the syllabus in State v. Baker and Rader, 69 W.Va. 263, 71 S.E. 186, 33 L. R. A. (N. S.) 549, relating to the keeping of a common gaming place, reaffirmed.
Error to Circuit Court, Harrison County.
John W Duffy was convicted of keeping a gaming house, and brings error. Affirmed.
Chas W. Moore and Sperry & Sperry, all of Clarksburg, for plaintiff in error.
Wm. G Conley, Atty. Gen., for the State.
Defendant was tried and convicted in the criminal court of Harrison county on an indictment charging him with keeping a "common gaming house," and adjudged to pay a fine of $50 and serve a jail sentence of 60 days. He was denied a writ of error by the circuit court of said county, and thereafter obtained one from this court. A number of errors are assigned in the petition, but no brief is filed on his behalf.
One assignment of error is that the trial court improperly overruled his motion for a continuance. The record shows that the continuance was refused because the case had been continued at a former day of the term, on motion of defendant, when it was called for trial. The court then set it for trial at another day of the term, and informed defendant that it would be tried on the day set. It also appears that defendant did not have summons issued for his witness Bell, on account of whose absence the continuance was asked, until the afternoon of the previous day. The refusal to continue was clearly no abuse of judicial discretion. Defendant had not shown proper diligence to have his witness summoned in time. State v. Brown, 62 W.Va. 546, 59 S.E. 508, and Cicerello v. Railway Co., 65 W.Va 439, 64 S.E. 621. The matter of continuances is within the sound discretion of the trial court, subject however to review for abuse thereof. State v. Harrison, 36 W.Va. 729, 15 S.E. 982, 18 L. R. A. 224; State v. Roberts, 50 W.Va. 422, 40 S.E. 484; and Boyd v. Beebe, 64 W.Va. 216, 61 S.E. 304, 17 L. R. A. (N. S.) 660.
Exception was taken to the ruling of the court in permitting certain questions to be asked of, and answers made thereto by, David L. Morris, a witness for the state. Without incumbering the reports with a quotation of these questions and answers, which cover about a page of the printed record, it is sufficient to say that they were for the purpose of proving that defendant was compensated for the use of his room by getting a portion of the stakes, commonly called a "rake-off." It was not necessary to prove that fact in order to convict him of the crime alleged. State v. Baker and Rader, 69 W.Va. 263, 71 S.E. 186, 33 L. R. A. (N. S.) 549. Therefore the evidence was wholly immaterial. But its admission does not call for reversal, for we can clearly see that defendant was not prejudiced by it. State v. Yates, 21 W.Va. 761.
Complaint is made of the following instruction, which the court gave at the state's request:
"The court instructs the jury that if you believe from the evidence in this case that a gaming house was being operated at the time and place charged in the indictment and that the defendant, John W. Duffy, was then and there the proprietor thereof, or was interested in the game or games and the profits of the same, then the jury should find the defendant guilty as charged in the indictment in this case."
No particular objection to the instruction is pointed out, and we find no fault with it. Defendant was the proprietor of the place, and he admits that he and his bartenders had charge of it. He was, therefore, chargeable with knowledge of the purpose for which it was being used, and if it was in fact used as a common gaming place he was guilty. If he was interested in the games and the profits thereof, that would be positive proof that he was maintaining a gambling place, for he admits his proprietorship. So that, if the jury were warranted in believing that gambling was being carried on in the room, they were bound to find defendant guilty if they found that he was the proprietor, and this he admitted, or that he got a part of the profits of the game, or that he was both proprietor and interested in the profits of the game.
Complaint is also made of the court's refusal to give the following instruction asked by defendant, and in modifying it and giving it in the modified form, to wit:
"The court instructs the jury that, in order to convict the defendant of the offense charged in the indictment, the state must show that gaming was carried on at the place charged in the indictment to such an extent to constitute a nuisance, and that the defendant was the proprietor of the game or interested therein, or in the profits thereof, and that a nuisance cannot be established by merely showing that there was gaming conducted at a particular...
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