State v. Gross, 30503.

• Decision Date: 22 July 1948
• Docket Number: 30503.
• Citation: 196 P.2d 297,31 Wn.2d 202
• Parties: STATE v. GROSS.
• Court: Washington Supreme Court

196 P.2d 297

31 Wn.2d 202

STATE v. GROSS.

No. 30503.

Supreme Court of Washington

July 22, 1948

Department 2

Orien Gross was convicted on sixteen counts of being a common gambler, and he appeals.

Appeal from Superior Court, Spokane County; Chas W. Greenough, judge.

Allen Hilen, Froude & DeGarmo, of Seattle, and Robertson and Smith of Spokane, for appellant.

Leslie M. Carroll and Clarence P. Smith, both of Spokane, for respondent.

STEINERT Justice.

By information filed by the prosecuting attorney for Spokane county, the defendant was charged, in each of sixteen counts, with the crime of being a common gambler. The charging part of the first count reads as follows: 'That the said defendant, Orien Gross, in the County of Spokane, State of Washington, on or about the 20th day of February, 1945, then and there being, did then and there willfully, unlawfully and feloniously open up, carry on, operate and conduct, as owner, manager, agent, clerk and/or employee, in that certain building known as the B P O K [Benevolent and Protective Order of Keglers] Lodge No. 1 or Keglers Club, located at East 526 Sprague Avenue in the City of Spokane, said county and state, a gambling game and game of chance commonly known as 4-5-6 played with dice, whereby money and its representative thereof was then and there bet, wagered and hazarded upon a chance and an uncertain and contingent event.'

The fifteen additional counts were identical in form with that of the first count, except that each count specified a different date on which the alleged offense was committed. These dates, as thus specified, fell within the period beginning February 20, 1945, and ending November 22, 1946.

The charges against defendant were brought under Rem.Rev.Stat. § 2469, which is one of the sections of the statute relating to gambling and reads as follows: ' Conducting gambling. Every person who shall open, conduct, carry on or operate, whether as owner, manager, agent, dealer, clerk, or employee, and whether for hire or not, any gambling game or game of chance, played with cards, dice, or any other device, or any scheme or device whereby any money or property or any representative of either, may be bet, wagered or hazarded upon any chance, or any uncertain or contingent event, shall be a common gambler, and shall be punished by imprisonment in the state penitentiary for not more than five years.'

Defendant pleaded not guilty as to each of the counts, and thereafter the cause was tried to a jury, which returned a verdict of guilty on each of the sixteen counts. Defendant's motions in arrest of judgment and for new trial having been denied, the trial court entered judgment of conviction, sentencing defendant upon each count to imprisonment in the state pentitentiary for a term of not more than five years, the sentences to run concurrently. Defendant appealed.

In his argument on the appeal, appellant does not contend that the evidence was insufficient to sustain the verdict, but only that, because of errors committed by the trial court, he is entitled to a new trial. Therefore, in stating the case made by the prosecution, we shall set forth the details to the extent deemed necessary to a proper understanding of the questions presented on the appeal.

In 1939, appellant and five associates, to whom appellant referred as 'founding fathers,' organized and incorporated what is known as the Grand Lodge of Benevolent and Protective Order of Keglers, a fraternal organization having for its object the promotion of the bowling sport and the interests of bowlers. Shortly thereafter, the grand lodge issued a charter to lodge number one, consisting of one hundred members and known as Keglers Lodge No. 1, or Keglers Club, located at 526 Sprague avenue in the city of Spokane.

Appellant and five of the associate members were the original directors of this subsidiary organization. Since the grand lodge and the subordinate lodge are for all purposes, so far as this action is concerned, one and the same, we shall refer to both of them, as they are referred to in the evidence, simply as the 'Keglers,' or the 'Keglers club.'

In September, 1940, the Keglers club made application to the state liquor control board for a club license, under the Washington state liquor act, Rem.Rev.Stat. § 7306-1 et seq. The application recited, among other things, that the club offered to its membership certain facilities, including a lounge room, reading room, lodge room, dining room, card room, tap room, cocktail lounge, bowling alleys, and conditioning department. In the lounge room were a dance floor and an orchestra pavilion. All of these facilities were in rooms located on the main floor of the club. Back, and at one end, of the bar was a narrow stairway leading to the floor above, where there wrer two small rooms and service quarters. It was in these upstairs rooms that the gambling herein referred to took place.

The application of the club for a license was granted, and a club license, commonly known as a 23 T license, was issued to it, and this has been renewed annually ever since.

Appellant was made manager of the club in 1941 and continued to hold that position until shortly Before the filing of the information herein. During 1945 and 1946 appellant was also a trustee of the organization, its secretary, and its treasurer. He and his wife and his brother were the trustees in charge of the members' liquor pool funds. As manager, appellant had complete control and supervision of the club, its premises, employees, and activities. Upon his recommendation, the various employees were hired and discharged. In fact, during 1945 and 1946 the Keglers club was practically a one-man organization, so far as control over its operations was concerned.

For several years prior to 1947, it had been the custom to hold 'stag night' parties at the club, following the regular lodge meetings on the third Monday evenings of each month. At the direction of the board of trustees of the lodge, appellant made and carried out all the arrangements for food, entertainment, and refreshments to be supplied either Before or after the regular lodge meeting.

The state's evidence showed that not only on those occasions, but frequently on others, a game known as '4-5-6' was played in the upstairs rooms, often lasting past midnight and sometimes as late as the afternoon of the next day. One of the state's witnesses described and explained the game as follows: 'Well, the game is played on a circular table with a dice cup and three dice. Certain combinations of those three dice are winners, and an equal number of combinations are losers. One person has the dice originally, and he is known as the banker in the game. He has the option of wagering any amount of money that he wishes. The banker has a certain sum of money that he sets forth on the table to wager against the other players in the game for the privilege of accepting all or portions of the bank and covering the bets. Then the banker will roll the three dice, and if he rolls a winning combination he wins, and if he rolls a losing combination he loses that money. If he rolls combinations neither winner nor loser, his opponents who have covered his bank have an opportunity to roll the dice, and if they roll a higher or lower number than the banker rolled, they win or lose accordingly.'

The dice which were used at the Keglers Club were kept upstairs in a locked closet, the key to which was retained by one of the club's regular employees.

Usually a specially hired employee, called a 'stick man,' or 'dealer,' assisted in the conduct or operation of the game. Sometimes another specially hired employee acted as a 'layout man.' The players in the game had no voice in the matter of selecting the stick man or the layout man.

The stick man, working in connection with the player who happened to be the banker at the time of a particular game, distributed the money as the bets were made, called the combinations as the dice were rolled, and, with an L-shaped stick, raked in the dice after the combinations had been ascertained. He also acted as a kind of umpire to settle any disputes arising among the players during the game. Sometimes one of the regular employees of the Keglers club acted as stick man in these games and discharged the duties as set forth above.

The layout man was, as also described by one of the witnesses, a 'man who works for the house,' that is, he took bets for the house during the course of the game. He was supplied with house money Before the game started, and operated on the opposite side of the table from the stick man. His time and attention were devoted to taking such side bets as the players wished to make against the house, independently of the banker or the money in the bank. The money which the layout man won belonged to the house, and no part of it was returned to the players after the game.

Out of each 'pot,' or 'bank,' a certain amount was taken, usually fifty cents or a dollar, which went to the house. These 'cuts,' of which there was an average of about fifteen in an hour's play, were placed in a box which the dealer or stick man kept on the table in front of him. After the game was over, the stick man paid for any services that had been rendered by any of the club employees during the game, and also paid the janitors who cleaned up the rooms afterwards. Whatever balance was left the stick man retained for himself or else left in the box on the table, for the house. No part of that money was ever divided among the players.

It is clear from the evidence that large sums of money were wagered in these games of '4-5-6' played at the Keglers club. It was not uncommon to see several, or even many, hundreds of dollars change...