State v. Langley

• Citation: 214 Or. 445,323 P.2d 301
• Parties: The STATE of Oregon, Respondent, v. William M. LANGLEY, Appellant.
• Decision Date: 19 March 1958
• Court: Supreme Court of Oregon

Page 301

323 P.2d 301

214 Or. 445

The STATE of Oregon, Respondent, v. William M. LANGLEY, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 18, 1957.

Decided March 19, 1958.

Peter S. Herman, Asst. Atty. Gen., for respondent, Robert Y. Thornton, Atty. Gen., Salem, on the brief.

Richard Carney, Portland, for appellant, Tanner & Carney and William M. Langley, Portland, on the briefs.

LUSK, Justice.

The defendant, William M. Langley, former district attorney of Multnomah County, was indicted upon a charge that he refused and wilfully neglected to inform against and diligently prosecute one William B. Nettleton as a person whom he had reasonable cause for believing to have violated the statutes of this state denouncing gambling as a crime. He was found guilty by a jury, and appeals from a judgment imposing a fine of $100 and declaring his office vacant.

The indictment, which was returned by the grand jury February 14, 1957, reads:

'William M. Langley is accused by the Grand Jury of Multnomah County and State of Oregon by this indictment of the crime of wilfully refusing and neglecting as a District Attorney to inform against and diligently prosecute persons guilty of a violation of Section 167.505, Oregon Revised Statutes, committed as follows:

'The said William M. Langley being at all times herein mentioned the duly elected, qualified and acting District Attorney of Multnomah County, State of Oregon, on the 18th day of March, 1955, and continuously at all times thereafter, in the County of Multnomah and State of Oregon, then and there being, and the said William M. Langley then and there having knowledge and reasonable cause to believe that one, William B. Nettleton, on the 18th day of March, 1955, in the County of Multnomah and State of Oregon, then and there being was then and there wilfully and unlawfully dealing, playing, carrying on and conducting as owner, proprietor and employee, games of twenty one and other games played with cards and dice, a more particular descritpion of which other games so played with cards and dice being to the Grand Jury unknown, all of which said games were then and there played for money, checks, credits and other representatives of value contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon, all of which he, the said William M. Langley, then and there well knew, and the said William M. Langley, as said District Attorney, did then and there wilfully and unlawfully refuse and neglect to inform against and prosecute the said William B. Nettleton for violating Section 167.505, Oregon Revised Statutes, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon.

'Dated at the City of Portland, in the County aforesaid, this 14th day of February, 1957.'

The statute which the defendant was accused of violating is ORS 167.515, which reads:

'Any district attorney, sheriff, constable, city or town marshal or police officer who refuses or wilfully neglects to inform against and diligently prosecute all persons who they have reasonable cause to believe are guilty of a violation of ORS 167.505, 167.510 and 91.420, shall be punished upon conviction by a fine of not less than $50 nor more than $500, and the court shall declare the office or appointment held by such officer vacant for the balance of his term.'

ORS 167.505, referred to in ORS 167.515, provides in part:

'(1) Every person who deals, plays, carries on, opens or causes to be opened, or who conducts either as owner, proprietor or employe, whether for hire or not, any game of faro, monte, roulette, rouge et noir, lansquenet, rondo, vingt-et-un or twenty-one, poker, draw poker, brag, bluff, thaw or any banking or any other game played with cards, dice or any other device, whether played for money, check, credits or any other representative of value, shall be punished upon conviction by a fine of not more than $500, and shall be imprisoned in the county jail, one day for each $2 of the fine and costs, until such fine and costs are paid, but not to exceed one year.'

ORS 167.510, also referred to in ORS 167.515, makes it a criminal offense to permit gambling on premises of which the accused is the owner or entitled to possession, and ORS 91.420 likewise therein referred to, is a civil statute of the same general character.

The first assignment of error is directed to the court's denial of defendant's motion for a directed verdict of not guilty, based on the ground that the state had failed to prove one of the essential elements of the charge, namely, that the defendant knew, or had reasonable cause for believing, that William B. Nettleton, named in the indictment, had violated the statutes against gambling. We examine the testimony to determine the merits of this contention. Since we are dealing with a motion for a directed verdict the evidence will be treated in the light most favorable to the state, and conflicts in the testimony are not for our consideration.

The incident which gave rise to this prosecution occurred, not on March 18, 1955, as alleged in the indictment, but on March 25, 1955. A trade association called The Portland, Oregon, Paint, Varnish and Lacquer Association, desiring to raise funds for various civic and charitable purposes, arranged for a 'jamboree party' at Jack and Jill's Restaurant located on the outskirts of the city of Portland. The restaurant was reserved by the Association for the evening and the proprietor was to serve dinner for the guests. Mr. Frank Alsop, secretary-treasurer of the Association, acting in its behalf, made an agreement with William B. Nettleton for the furnishing by the latter of gambling paraphernalia to be used at the party. Under the terms of this agreement, after all of Nettleton's expenses were paid, which included the cost of transporting the equipment and the wages of six or seven dealers to be supplied by Nettleton, the net proceeds of the gambling were to be divided equally between Nettleton and the Association. Admission to the party was by invitation, and approximately 200 persons attended. Nettleton received as his share of the profits some $600 or $700, according to varying statements in the testimony. The Association was able to distribute a like amount derived from the same source to various worthy causes.

The gambling apparatus consisted of two 21 tables, a dice table, a crap table, and a big 6 wheel. ¹ The defendant and his wife were invited to the party by Mrs. Dorothea B. Anderson, his secretary, whose husband was an employee of General Paint Corporation. The Andersons and Langleys arrived at Jack and Jill's, according to Mrs. Anderson's testimony, about 7:30 p. m. or shortly thereafter. Other testimony fixed the time at about 8:30 or 9. They stayed no longer than 20 minutes. The defendant and his wife testified that Mrs. Anderson had invited them to attend a carnival; that they were disappointed when they arrived because, instead of a carnival, it appeared to be a card party; that neither of them played cards or drank, and so they left and returned to Mrs. Anderson's apartment to play scrabble.

While they were in Jack and Jill's a High Dice table, two 21 tables, and a crap table were in operation. Some chips were being used as well as currency and silver. The defendant walked into the bar room and dining room and came close enough to one of the gaming tables to brush against it. The defendant testified that, aside from the people in his own party, he saw no one whom he knew except a police officer named Dan Mitola, with whom he conversed for a few minutes about a murder case which he was investigating. Nettleton was there in the role of 'manager of the operation,' but there is no evidence that the defendant knew Nettleton or had ever heard of him until the institution of the investigation which led up to this indictment. The defendant did not directly testify that he did not see gambling in progress while he was at Jack and Jill's that evening. He was not asked the question either by his own counsel or by the prosecuting attorney.

Additional testimony was introduced which the state claims shows that the defendant's failure to prosecute Nettleton was influenced by a corrupt motive. Nettleton was an employee of James B. Elkins, a professional gambler. The gambling apparatus furnished to the Association was owned by Elkins, and he also supplied a 'bank roll' of $5,000 as the financial backing for the operation--'to guarantee the losses.' The money was taken to Jack and Jill's by James L. Jenkins, who was also an employee of Elkins. He was a mechanic, and his job was servicing pinball machines and music boxes for the Service Machine Company, which Elkins owned. The bank roll was 'distributed on the tables.' Another employee of Jenkins, Bernard Kane, who helped to set up the equipment, acted as a 'shill,' that is, one 'who plays, kind of keeps the game going along when it 'quietens' down.'

Elkins was a witness for the state. Besides corroborating other witnesses as to his part in the affair of March 25, 1955--the furnishing of the gambling apparatus and bank roll and the division of the profits--he testified to the following effect concerning his relations with the defendant: His acquaintance with the defendant commenced in 1945 or 1946, when he employed the defendant to do some legal work for him. The defendant was elected district attorney in November 1954 and took office on January 3, 1955, and, shortly prior to the latter event, Elkins, Langley and one Thomas Maloney met in the Olympic Hotel in Seattle and discussed gambling and the division of money. Maloney was a Seattle gambler and race track man. Concerning this meeting Elkins testified:

'Q. (By Mr. Wyckoff) Mr. Elkins, will you state what Mr. Langley said and what you said and what Mr. Maloney said in this conversation in the Olympic Hotel in Seattle. A....