State v. Wells

• Decision Date: 06 March 1923
• Docket Number: 1017
• Citation: 212 P. 1099,29 Wyo. 335
• Parties: STATE v. WELLS
• Court: Wyoming Supreme Court

212 P. 1099

29 Wyo. 335

STATE v. WELLS

No. 1017

Supreme Court of Wyoming

March 6, 1923

APPEAL from District Court, Platte County; HON.W. C. MENTZER, Judge.

Fern Wells was convicted of conducting and carrying on a game of poker for representatives of value, and appeals. The material facts are stated in the opinion.

Reversed and Remanded.

Marion A. Kline and Oscar O. Natwick, for appellant.

The prosecution was under Section 2856 C. S.; the section is in conflict with Article III, Section 24 of the Constitution and void; the law as originally enacted was a license statute such being its purpose as expressed in its title; its amendment and conversion into a penal statute, extending its operations beyond the purpose expressed in the original title and not germane thereto, rendered it invalid. (Lewis Suth Stat. Cons. 2nd Ed. 120, 137, 139; Ex Parte Cowert (Ala.) 9 So. 225; Board v. Aspen M. & S. Co., (Colo.) 32 P. 717; Dolese et al. v. Pierce, (Ill.) 16 N.E. 218; State v. American Sugar Refining Co., (La.) 31 So. 186; State v. Cornell (Neb.) 74 N.W. 432; State v. Bowen, (Neb.) 74 N.W. 615; State v. Tibbetts, (Neb.) 71 N.W. 990; Armstrong v. Mayer, (Neb.) 83 N.W. 401; People v. Fleming, (Colo.) 3 P. 70; Mack v. State, (N. J.) 36 A. 1088; Astor v. Railway Co. , (N. Y.) 20 N.E. 594; Kennedy v. Le Moyne, (Ill.) 58 N.E. 903.); the information fails to state a crime; poker is not enumerated as a game forbidden by the statute (State v. Walsh, 43 Minn. 444; 45 N.W. 721.); the information is too indefinite to support a judgment; it fails to allege whether defendant conducted the game as owner or for hire; it alleges that defendant conducted the game for representatives of value, without alleging that the representatives of value were the subject of gambling, or compensation for services (People v. Carroll, 22 P. 129.); it fails to describe the valuable things (Anthony v. State, 23 Tenn. 83.); the court erred in permitting the admission of evidence relating to games at occasions other than as charged or described by the prosecuting witness (Fields v. Territory, 1 Wyo. 78.); the court erred in receiving evidence of offenses on dates subsequent to the date alleged in the information (Wickard v. State, 109 Ala. 45; 19 So. 491.); the verdict is contrary to the evidence; several witnesses for the prosecution contradicted the prosecuting witness as to the character of the game conducted; the prosecuting witness Knight, being an accomplice, required corroboration which was not supplied (McNeally v. State, 5 Wyo. 59; 36 P. 824.) The court erred in submitting the cause on instruction number 5, said instruction being based upon evidence erroneously admitted (Konopisos v. State, 185 P. 355.)

W. L. Walls, Attorney General and Vincent Carter, Deputy Attorney General, for respondent.

Section 2856 under which the prosecution was brought, it is true, was enacted as a gaming license act, but a reference to its title shows that it was "an act to restrict gaming," a title sufficiently broad to support its amendment as a penal statute. The statute is broad enough in terms to prohibit the game known as poker. The criticism of appellant as to the form of the information is one which should have been made, if at all, by motion to quash (6186 C. S.; Koppala v. State, 15 Wyo. 418.) The information stated an offense and defendant's motion for arrest of judgment was properly overruled; there was sufficient evidence to sustain a conviction independent of the testimony of the witness Daugherty, hence the admission of his evidence was not prejudicial (Thorndike v. Boston, 1 Met. 242-249; State v. Finney, 125 Ind. 427; Bothwell v. Milikon, 104 Ind. 162; Krug v. Davis, 101 Ind. 75; Anderson v. Cole, 26 Ind. 329; McDonald v. Moore, 32 Ill.App. 142; Dunne v. Deery, 40 Ia. 251; Harman v. Kelly, 14 Ohio 502; Delameter v. Smith, 44 P. 266; Sherburne v. Rodman, 51 Wis. 474; Kimball v. Hildreth, 90 Mass. 167.) As to the sufficiency of the evidence, it clearly shows that defendant participated in an unlawful game and, in fact, shows that complaining witness bought from defendant chips used in playing the game. The game as defined by the witness makes it a game of chance played and conducted for representatives of value and it was, therefore, unlawful. The judgment should be sustained.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

An information was filed in the District Court for Platte County on January 28, 1920, charging that the appellant "on the 15th day of September, A. D. 1919" in said county "did then and there unlawfully and maliciously conduct and carry on a certain game played with cards, known as poker, for representatives of value." There was endorsed on the back of the information the name of S. A. Knight as "Prosecuting Witness." Upon a plea of not guilty a jury trial was had on February 6, 1920, a verdict of "guilty as charged in the information" rendered, and thereafter the appellant was sentenced to pay a fine of $ 500 and the costs of the action, and to stand committed to the county jail until the payment of such fine and costs.

The information was filed under § 2856, Compiled Statutes 1910 (C. S. 1920, § 3389) which was originally Section 1 of Ch. 65 of Laws 1901, an act amending § 2178 of the Revised Statutes of 1899. The section as amended in 1901 and now contained in the Compiled Statutes reads as follows:

"Every person who shall deal, play, carry on, open or cause to be opened, or who shall conduct, either as owner or employe, whether for hire or not, any slot machine, game of faro, monte, roulette, lansquenette, rondo, vingt-un, commonly known as twenty-one, keno, props, or any other game played with cards, dice or other device of whatever nature, for money, checks, credit, or other representatives of value, shall be guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine of not less than three hundred nor more than one thousand dollars, or by imprisonment of not less than three months nor more than one year, or by both."

The section thus amended had declared it a misdemeanor to do the acts mentioned "except under a license as hereinafter provided." The only changes made by the amendment were the omission of the words "except under a license as hereinafter provided," inserting the words "any slot machine" where it now appears, and the words "or any other game" after the naming of certain games, instead of the words "or any banking game," originally found at that place in the section.

A question is raised by the specifications of error and in appellant's brief as to the validity of the statute under Section 24 of Article III of the State Constitution, which we do not think necessary to determine. Nor do we think it necessary to consider the questions raised respecting the sufficiency of the information or whether or not it charges an offense punishable under the laws of this state. There was but one exception taken on the trial, and, since the case can be here disposed of upon other grounds, we should prefer to consider the above mentioned questions, if at all, in disposing of a case more closely tried than the case at bar appears to have been, and where such questions are shown to have been properly presented to the trial court.

The prosecuting witness above named was the first witness called upon the trial, and he fixed the date of the game charged to have been carried on and conducted as follows: "Along about September, I would not say it was September, was near that time. * * *" And later, during his examination by the prosecution, he said as to the date: "Well, it was close to September, it may have been the latter part of August or the first part of September, I could not say." He then stated that he referred to the year 1919 and the place as George Lowry's soft drink parlor in Guernsey in said county. On cross-examination he stated that the alleged crime occurred on or about the 15th day of September, that being the date as near as he could remember. But during the cross-examination he also stated that it may have been the first of September or the latter part of August. He described the game as one in which he sat as one of the players with the defendant "Fern Wells, Daugherty, Gus Anderson, and Bennett, one or two more, I don't remember their names." He then testified as follows:

Q. Who was running the game? A. Why, I don't know, I suppose George Lowry was, Fern Wells had charge of it. Q. What was the position that Fern Wells occupied in the game? A. He took the rake-off. Q. What do you mean by taking the rake-off, Mr. Knight? A. Well, take out a chip every so often for the house. Q. Did Mr. Wells pay? A. No sir. Q. Who did you buy your chips from? A. We bought them from Fern--Lowry paid. Q. Fern who? A. Wells. * * * Q. Did you sit in a game on more than one occasion where Fern Wells was taking the rake-off? A. I am not sure that I did, no sir, I would not be sure that I sat in more than one game where Fern Wells was taking the rake-off. * * * Q. When you bought that stack of chips from Fern Wells, how much did you pay for them? A. I don't remember, I think it was $ 10, $ 5 or $ 10, I don't remember which."

That witness stated also two or three times during his examination that he never saw the defendant Wells doing anything while he was in Guernsey during the year 1919, probably meaning that he did not see him engaged in any occupation.

The next witness called was James Bennett, the person named by the witness Knight as one who played in the game described by him. He stated that he was acquainted with the defendant Wells and had seen him in Mr. Lowry's place; "doing about the same as everybody else, some times he was not doing anything, setting, talking...