State v. Myers
| Decision Date | 08 June 1940 |
| Docket Number | 34685. |
| Parties | STATE v. MYERS. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Where record failed to disclose what excluded testimony of defendant's witness would have been had he been permitted to testify, the Supreme Court could not review the alleged error in the exclusion of such testimony.
Where neither the state nor the defendant objected to certain instruction, that instruction became the "law of the case."
In prosecution for setting up and keeping a slot machine in restaurant for gambling purposes, wherein defense was that slot machine was not set up or kept in restaurant with defendant's knowledge or consent, but that it had been stored in defendant's padlocked shed for a third person and that defendant's employee had moved the slot machine into the restaurant during defendant's absence to experiment with it, that defendant returned to restaurant and discovered slot machine shortly before officers seized it and that defendant had instructed employee to remove slot machine, it was error to exclude employee's testimony that it was not his intention that public should play the machine. Gen.St.1935, 21-1508.
In prosecution for setting up and keeping a slot machine in restaurant for gambling purposes, wherein defense was that slot machine was not set up or kept in restaurant with defendant's knowledge or consent, but that it had been stored in defendant's padlocked shed for a third person that defendant's employee had moved the slot machine into restaurant during defendant's absence to experiment with it, that defendant returned to restaurant and discovered slot machine shortly before officers seized it, and that defendant had instructed employee to remove slot machine, deposition testimony of owner of slot machine that he stored the machine in defendant's shed with the intention to stop later and pick it up was competent. Gen.St.1935, 21-1508.
In prosecution for setting up and keeping a slot machine in restaurant for gambling purposes, instruction that defendant could not be found guilty for anything his agent did for his own amusement, "that was not unlawful," but for anything that agent did in the place of business of defendant in connection with his employment, and as the agent of defendant, defendant would be responsible, was improper as an inadequate and inaccurate statement of the law. Gen. St.1935 21-1508.
In prosecution for setting up and keeping a slot machine in restaurant for gambling purposes, it was error to refuse to give certain requested instructions touching defendant's knowledge or consent that his employee should put the slot machine in the restaurant. Gen.St.1935, 21-1508.
The record in a criminal action for setting up and keeping a slot machine in defendant's restaurant for gambling purposes, examined and held: (1) In view of the defense that the machine was not set up or kept in the restaurant with defendant's knowledge or consent, testimony concerning the intention of the owner of the machine (a third party), in leaving the machine in defendant's padlocked shed, and testimony concerning the intention of one of defendant's employees in moving the machine into the restaurant during defendant's absence, was improperly excluded on the ground such testimony of intention constituted a conclusion of the witnesses; (2) a complaint concerning the exclusion of testimony, where the testimony of the witness is not brought into the record for review, cannot be considered on appeal; (3) the principal instruction, in view of the defense, did not constitute an adequate or an accurate statement of the law; (4) it was error to refuse to give certain requested instructions touching defendant's knowledge or consent, or to give the substance thereof.
Appeal from District Court, Nemaha County; C. W. Ryan, Judge.
E. A. Myers was convicted of setting up and keeping a slot machine in his restaurant, and unlawfully inducing, enticing or permitting a certain individual to bet or wager money thereon, and he appeals.
Judgment reversed with directions to grant a new trial.
Charles Rooney, John W. Lewis, and Fred Rooney, all of Topeka, for appellant.
Jay Parker, Atty. Gen., and Harry A. Lanning, Co. Atty., of Seneca, for appellee.
This was a prosecution in two counts for an alleged violation of G.S.1935, 21-1507 and 21-1508, commonly known and referred to as the slot machine statutes. The first count in substance charged that defendant had set up and kept a slot machine in his restaurant on the 15th day of May, 1939, and had unlawfully induced, enticed or permitted one, Herman Mohringer, to bet or wager money thereon. It is agreed that count was framed under the provisions of G.S.1935, 21-1508. The second count charged defendant with operating a slot machine on the same day and that in connection with its operation cash prizes were given. It appears the second count was intended to be framed under the provisions of G.S.1935, 21-1507. At the conclusion of the state's evidence defendant moved to require the state to elect upon which count it would rely for conviction. The motion was sustained and the state elected to rely upon the first count. On that count defendant was convicted and he appeals.
The pertinent part of the state's evidence was in substance as follows: The slot machine was found on a counter in defendant's care on the evening of May 15, 1939. Defendant had an employee in the restaurant by the name of Edgar Roush. At about 8 o'clock p.m., of May 15th, Pete Bieri, an under-sheriff of Nemaha county and Herman Mohringer, a deputy county sheriff, drove up in front of defendant's cafe, located in the city of Sabetha. Bieri remained in the car. Mohringer entered the cafe and saw the slot machine. Mohringer inquired of Roush whether the slot machine was working and was informed that it was. Mohringer then asked Roush to give him two nickels for a dime. Mohringer worked the machine. He inquired of Roush who owned the machine, and Roush told him he did not know. Mohringer took the machine to the car. While Mohringer was in the cafe defendant came out of the cafe and talked to Bieri, the under-sheriff. Defendant advised Bieri that he had a slot machine. Defendant inquired of Bieri whether the "heat" was still on slot machines. The machine was delivered to the car while defendant was visiting with Bieri.
The defense was in substance as follows: The machine was the property of one, Chris Inger, who had obtained permission from defendant on the evening of May 13, 1939, to store the machine in defendant's padlocked shed behind the cafe; defendant had been out of town and did not know until a brief time before the officers arrived that the employee Roush had brought the machine into the cafe; the machine was not placed there by the employee Roush with the intention the public should use it but in order for Roush to experiment with it; the machine was brought into the cafe without defendant's knowledge or consent; defendant returned from out of town and went to the cafe about fifteen or twenty minutes before the officers appeared; Roush was busy getting lunch for a truck driver and before he had time to carry out defendant's instructions relative to the machine, the officers appeared.
Defendant complains concerning the exclusion of certain testimony of the witness Roush. The excluded testimony pertains to the intention of Roush in taking the machine out of the storage shed and bringing it into the cafe. The complaint also includes the refusal of the court to permit the witness Roush to testify concerning the alleged instructions he received from the defendant after defendant observed the machine in the cafe. The pertinent portion of the direct examination of the defense witness Roush was as follows:
The cross-examination of the witness Roush was, in part, conducted by the trial court. That portion of the cross-examination reads:
To continue reading
Request your trial
-
Mattan v. Hoover Co.
... ... not responsible, and therefore, the evidence failed to ... establish a submissible case against the defendant, The ... Hoover Company. State v. Myers, 152 Kan. 56, 102 P.2d ... 1023; Dohner v. Winfield Whsle. Groc., 116 Kan. 237, ... 226 P. 767; Hurla v. Capper Publications, 149 ... ...
-
Mattan v. Hoover Company
...is not responsible, and therefore, the evidence failed to establish a submissible case against the defendant, The Hoover Company. State v. Myers, 152 Kan. 56, 102 Pac. (2d) 1023; Dohner v. Winfield Whsle. Groc., 116 Kan. 237, 226 Pac. 767; Hurla v. Capper Publications, 149 Kan. 369, 87 Pac.......
-
Smith v. Bassett
... ... The instructions ... became the law of the case and the complaint is not available ... on appeal. State v. Myers, 152 Kan. 56, 59, 102 P.2d ... 1023; Haney v. Canfield, 152 Kan. 597, 600, 106 P.2d ... Appellant ... insists that since the ... ...
-
Bishop v. Huffman, 39559
...of the case on the subject. Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 725, 85 P.2d 28, 120 A.L.R. 521; State v. Myers, 152 Kan. 56, 59, 102 P.2d 1023; Haney v. Canfield, 152 Kan. 597, 600, 106 P.2d 662. The jury returned a general verdict in favor of the defendant and in add......