State v. Lew, 29902.
| Decision Date | 15 November 1946 |
| Docket Number | 29902. |
| Citation | 174 P.2d 291,26 Wn.2d 394 |
| Parties | STATE v. LEW. |
| Court | Washington Supreme Court |
Harry Lew was convicted of being a common gambler, and he appeals.
Judgment affirmed.
Appeal from Superior Court, King County; Chester A. batchelor, judge.
Clarence J. Coleman, of Everett, and George R. Stuntz, of Seattle, for appellant.
Lloyd Shorett and Max R. Nicolai, both of Seattle, for respondent.
Defendant was charged in the superior court for King county by information with the crime of being a common gambler as set forth in three counts. The charging part of the information reads as follows:
'He the said Harry Lew, in the County of King, State of Washington, on or about the 5th day of September, 1945, wilfully, unlawfully and feloniously, as owner and manager, did conduct and operate gambling games and games of chance, to-wit: craps, chuck-a-luck, black-jack and roulette, played with dice, cards and wheels, whereby money was then and there bet, wagered and hazarded upon a chance, uncertain and contingent event.'
Count II charged the same crime and alleged that it was committed on or about September 6, 1945. Count III charged commission of the same crime on or about September 9, 1945.
The information is predicated upon the statute which reads as follows:
'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.' Rem.Rev.Stat. § 2469.
Trial of the cause to a jury resulted in a verdict finding defendant guilty as charged. Judgment was entered, sentencing defendant to confinement in the state penitentiary for not more than five years on each count, the sentences to run concurrently. Defendant appealed.
One room of the 'China Pheasant,' a dance and dine resort located outside the boundaries of Seattle and within the police jurisdiction of the sheriff for King county, was devoted to gambling and was in operation on the dates charged in the information. Appellant concedes the sufficiency of the evidence as to gambling and gambling paraphernalia.
About midnight, September 9, 1945, county peace officers raided the China Pheasant after having obtained a search warrant for gambling paraphernalia. One of the peace officers, who personally knew appellant, immediately upon entering the premises of the China Pheasant placed appellant under arrest and directed him to remain in the building. After the raid was concluded and the evidence seized, appellant had disappeared.
Appellant first complains that the prosecuting attorney in his opening statement was guilty of prejudicial misconduct in that he directed attention to the commission of a separate and distinct offense--attempted bribery by appellant--and referred to an injunctive order and bond in an abatement action in which appellant was the defendant.
The prosecuting attorney stated that one year previous to the three dates appellant is charged with owning and operating a gambling house, a county peace officer sought to investigate the China Pheasant. Appellant met the officer and invited him to have dinner with his girl friend at the China Pheasant. Appellant accompanied the officer to the latter's automobile and offered him a bribe of two fifty- dollar bills. When the officer refused to accept the bribe, appellant threw a fifty-dollar bill into the officer's automobile. Appellant's motion for a mistrial and that the statements of the prosecuting attorney be stricken was denied.
Over objection of counsel for appellant, the prosecuting attorney stated that he would show that a year prior to the dates alleged in the information he had brought abatement proceedings against the China Pheasant, and that appellant had agreed to the entry of an order enjoining gambling at the China Pheasant, and had posted a bond in the amount of one thousand dollars to assure his compliance with that order.
The testimony which supported the opening statement of the prosecuting attorney regarding appellant's attempt to bribe a peace officer was stricken by the trial court, and the jury were orally and in writing instructed that that testimony had been stricken.
For the purpose of identifying appellant as owner and manager of the China Pheasant, and in conformity to his opening statement, the prosecutor offered in evidence the record of an abatement action filed in 1944 against the China Pheasant, which record fully sustained the prosecutor's opening statement. The objection of appellant to admission of the documents in evidence and the offer of proof thereon was sustained.
While the facts respecting appellant's offer of money to a county peace officer tended to prove that appellant was guilty of the crime of attempted bribery, such evidence was not incompetent. The sole defense of appellant at the trial was that he did not own the China Pheasant. Evidence of the attempted bribery was relevant in the prosecution of appellant on the charge of which he was convicted, as it was some evidence of an essential ingredient of the crime with which appellant was charged; that is, ownership or management of the gambling resort by appellant. If appellant did not have a material interest in the gambling business that was under investigation, he would hardly have attempted to bribe the peace officer. The evidence of the attempt to bribe the officer was relevant, as it tended to prove appellant's ownership or management of the gambling house. As that evidence was relevant, it was admissible, even though it tended to prove commission of the collateral crime on the part of appellant. 22 C.J.S., Criminal Law, § 691, p. 1139. See also State v. Kaukos, 109 Wash. 20, 186 P. 269; State v. Owen, 161 Wash. 324, 297 P. 169; State v. Stevenson, 169 Wash. 10, 13 P.2d 47.
The trial court erred in granting the motion to strike the testimony of the witness and in withdrawing from the consideration of the jury the reference of the prosecutor respecting the offered bribe. The prosecuting attorney was not guilty of misconduct in his opening statement.
The evidence concerning the injunction proceeding was admissible, and the trial court erred in sustaining the appellant's objection thereto. That evidence supported the charge not only that gambling was in operation at the China Pheasant, but that appellant was the owner and manager of that gambling house.
Appellant next assigns as error the court's instruction No. 7 1/2 as follows:
'You are instructed that if you find from the evidence beyond a reasonable doubt that the defendant Harry Lew, within a reasonable time prior to the dates alleged in this information, was the owner or manager of the China Pheasant, the law presumes, in the absence of evidence to the contrary, that such ownership or management continues.
'Your are further instructed that this presumption is rebuttable and it is rebutted if, after a careful consideration of all the evidence relative thereto, you have a reasonable doubt as to such ownership or management at the time or times charged in the information herein.'
Appellant contends that the vice of the instruction is that it nullifies the presumption of innocence and creates a new presumption which requires the appellant to prove a negative; that is, non-ownership or non-management, if the jury should find that at some previous time appellant was either owner or manager.
True any presumption of the continuance of ownership or management is not a presumption of law, but only one of fact, and as such is only a circumstance for the jury to consider along with all the other circumstances in the case. The giving of the instruction quoted above constituted error; however, the instruction was not, in view of the evidence which established appellant's ownership and management of the gambling house, prejudicial. A presumption of law is an arbitrary rule of law that when a certain fact or facts appear, a certain other fact is, for the purpose of the case, deemed to be established either conclusively or until contrary evidence is introduced; while a presumption of fact is merely a logical inference or conclusion which the trier of the facts is at liberty to draw or refuse to draw. The weight to be attached to the circumstance of prior ownership, like all other evidence in the case, was a question of fact for the jury, and the...
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