State v. Kaukos

• Decision Date: 15 December 1919
• Docket Number: 15480.
• Court: Washington Supreme Court
• Parties: STATE v. KAUKOS et al.

186 P. 269

109 Wash. 20

STATE v. KAUKOS et al.

No. 15480.

Supreme Court of Washington

December 15, 1919

Department 2.

Appeal from Superior Court, Grays Harbor County; Geo. D. Abel Judge.

Sam Kaukos and George Karaiskos were convicted of operating a gambling game, and they appeal. Affirmed.

W. H Abel, of Montesano, for appellants.

J. E Stewart, of Aberdeen, and J. A. Hutcheson, of Montesano, for the State.

BRIDGES J.

The information in this case charged the defendants jointly with the crime of opening, conducting, carrying on, and operating as managers, owners, or dealers, a gambling game known as 'stud-poker,' on or about the 23d day of March, 1919, in the county of Grays Harbor, state of Washington. The information is substantially in the words of the statute. The defendants were tried jointly, found guilty, and sentenced. From that judgment they appeal.

The testimony tended to show that some time prior to the date alleged in the information the two defendants leased the premises in which it is charged the crime was committed, and that at about the same time the defendants purchased, or otherwise acquired, furniture for the leased premises; that on the 19th day of March, 1919, the defendant George Karaiskos was running the game and dealing and the defendant Sam Kaukos was present and, at least a part of the time, playing in the game as any one else; that on March 20, 1919, the defendant Sam Kaukos was running the game and dealing; that on March 22, 1919, the defendant George Karaiskos was operating the game and dealing and the defendant Sam Kaukos was present and participating in the same as did others present; and that on the 23d of March the defendant Sam Kaukos was operating the game and dealing and the defendant George Karaiskos was present and playing in the game as others were playing. When the evidence was all in, the court required the prosecuting attorney to elect as to which date he would select, and the date mentioned in the information, to wit, March 23d, was selected.

The statute under which the defendants were charged reads as follows:

'Every person who shall open, conduct, carry on or operate, whether as owner, manager, agent, dealer, clerk, or employé, 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.' Section 2469, Rem. 1915 Code, vol. 1.

The chief point raised by the appellants is that the court committed prejudicial error in receiving testimony concerning the operation of the game on days other than on the day named in the information. The courts have found it very difficult to lay down any very precise rules concerning the admission of testimony tending to prove other and distinct offenses. We have not seen any better or clearer discussion of the matter than is contained in State v. Gottfreedson, 24 Wash. 401, 64 P. 524, wherein Judge Dunbar used the following language:

'The general rule is well established that proof of the commission of a separate and distinct crime will not be admitted for the purpose of aiding the conviction of defendant for the crime charged. There are exceptions, however, to this general rule, as where the testimony shows a connection between the transaction under investigation and some other transaction, and where they are so interwoven that the omission of the testimony in relation to the other crime would detract something from the testimony which the state would have the right to introduce as tending to show the commission of the crime charged by the defendant, or where it is apparent that the parties had a common purpose in the transaction of both crimes, or where the testimony tending to show the commission of one crime tends to prove a condition of mind which must necessarily be entertained by the defendant in the commission of the crime charged. * * *'

There are, at least, two essential elements which must be proven in order to justify conviction in this case. One is that the defendants opened, conducted, carried on, or operated the game at the time charged in the information; and the other is that they did so either as owners, managers, agents, dealers, clerks, or employés. We think the testimony to which objection is made was clearly admissible, not only for the purpose of showing that the defendants were operating the game on the date mentioned in the information, but also for the purpose of showing their interest in the same as owners or managers. The testimony shows that on the day fixed in the information Sam Kaukos was actively engaged in operating the game, and that at that particular time the other defendant, George Karaiskos, was present and playing. Testimony...