Turner v. State

• Decision Date: 03 April 1922
• Docket Number: 273
• Citation: 239 S.W. 373,153 Ark. 40
• Parties: TURNER v. STATE
• Court: Arkansas Supreme Court

239 S.W. 373

153 Ark. 40

TURNER v. STATE

No. 273

Supreme Court of Arkansas

April 3, 1922

Appeal from Union Circuit Court; Charles W. Smith, Judge; affirmed.

Judgment affirmed.

Mahoney & Yocum and Powell & Smead, for appellant.

There is no direct testimony to the effect that that part of the house where the gambling was done was owned, used or controlled by the defendant.

Evidence of conviction for selling whiskey was improperly admitted.

The indictment does not charge the defendant with running a gambling house.

J S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.

The verdict of the jury was amply supported by the evidence. Cain v. State, 149 Ark. 616.

The testimony of B. A. Hancock was not hearsay, and was properly admitted. When proof of a statement is introduced for the purpose of establishing the fact that a party relied and acted thereon, it is not objectionable on the ground that it is hearsay. 10 R. C. L. sec. 133, p. 959; 83 Ga. 703; 112 P 617.

It was not error for the court to permit witness Turner to testify as to the acts and conduct of defendant at the time the raids were made. 52 Ark. 180; 117 Mass. 122; 41 Iowa 219; 1 Thompson on Trials, 379; 88 Ark. 62.

There was no error in permitting the State to prove by the defendant, on cross examination, that he had been convicted of a felony. 114 Ark. 239; 53 Ark. 387; 72 Ark. 284; 70 Ark 272; 91 Ark. 555; Powell v. State, 149 Ark. 311.

The indictment herein sufficiently charges the offense of keeping, conducting or operating a gambling house or place where gambling is carried on, by setting up, keeping and exhibiting and being interested in gambling devices, etc. Joyce on Indictments, § 413; 20 Ark. 67; Snad. Ency. of Pro. vol. 12, p. 522.

OPINION

WOOD, J.

The appellant appealed from a judgment of conviction on an indictment which, omitting formal parts, reads as follows:

"The grand jury of Union County, in the name and by the authority of the State of Arkansas, on oath accuse the defendant, C. O. Turner, of the crime of running a gambling house, committed as follows, to-wit: The said defendant, on the 7th day of November, 1921, in Union County, Arkansas, did unlawfully and feloniously run, maintain and operate and suffer and permitted gaming tables to be maintained and gambling to be carried on and exhibited in a certain house or building then and there owned, used and controlled by him, the said C. O. Turner, said building then and there being situated on a lot on South Washington Street in the city of El Dorado, and commonly known as the Willis Jones place, against the peace and dignity of the State of Arkansas."

At the trial the sheriff of the county testified that when the building known as the Willis Jones place was raided by him for gambling and parties were arrested for that offense, the appellant generally put up bonds for them, and when they were short of money appellant would put up additional amounts necessary "to get up for the men who were gambling in that place." This occurred in Union County, Arkansas, since the first of the year 1921. The appellant had rooms in the house, and he rented rooms to others. The gambling was carried on in the shed back of the house. There was a dwelling house, a barn and stable and a little shed. The shed was used for gaming. The back yard was surrounded by a high board fence. In going into the Willis Jones residence from the street there is a continuous floor space all the way back where there is a poolroom and gaming going on all the time. The witness, with others, made a number of raids on the place. The parties who were arrested for gambling in that place when the raids were made never put up their money for their fines. They didn't want to go to jail, and sometimes they would request the appellant to put up the money and stand good for them. When Willis Jones left the place, the appellant moved into the property vacated by Jones, and then the gambling started. In the various raids made by witness on the place he found a great amount of paraphernalia such as is used in gambling houses.

There was other testimony corroborating the testimony of the above witness to the effect that the premises known as the Willis Jones place, while under the control of appellant, was being maintained as a gambling house. One witness testified that he went there on one occasion after complaint was made to him that it was being run as a gambling house, and found two hundred men in there. Some man invited the witness to come in, and witness replied that he did not have any money. Whereupon the party said that witness' check would be good. Witness handed his check to a certain party, who took it up to appellant in the front part of the house and brought back the money. A few days later witness went to the bank and got the check, and it was indorsed C. Turner. Witness did not know whether it was C. O. Turner, the appellant's signature, or not. The place where the gaming was going on was a shed 100 feet or more from the house. He entered the house from the street--went into a hallway a little north of the room where he saw appellant standing.

Another witness testified that he went down to the Willis Jones place and saw gambling going on. He didn't know who owned the place--saw appellant there, working there-- saw him in the office. At the time gambling was going on in the house and in the livery stable. Witness never saw appellant exercising any authority. He saw him in the office in the front, and they said it was his place.

Another witness stated that he was present at the Willis Jones place on a certain occasion when some deputy sheriff raided same; as they started to the back, some one ran up and pushed a little signal button that runs to the gambling room and they began to pour out. Witness didn't remember seeing the appellant. Witness had been deputized as constable and was asked by the prosecuting attorney to go down there. When witness arrived at the place there was no gambling going on. Witness walked on back and found whiskey and chock beer in a suitcase. Appellant was in there and assumed charge of the place. The appellant objected to the witness stating that appellant assumed charge of the place. Appellant told witness on that occasion that he did not allow whiskey in the building and did not know how it got there. In the trial about the whiskey, appellant admitted that he had charge of the place, but was turning it back to Willis Jones, as he didn't want to get Jones into trouble. When witness went there and found the whiskey, appellant said he was in control, and didn't know how the whiskey got there; that some one had slipped it in and left it. Witness did not find any gambling devices there. The appellant stated that all the gaming devices had been moved out. Appellant made the statement that he was in charge of the place. He assumed charge and directed witness to the different places --seemed to have charge of the whole building. It was shown that the appellant was renting the building from Willis Jones.

The appellant testified in his own behalf that he rented some rooms from Willis Jones on a lot on South Washington Street known as the Willis Jones place. He had four rooms in the building in the front yard of that house. He had nothing to do with any other part of the building. He didn't participate in the games in the place known as the gambling house--had no interest in it. He stated that he did not run any of the games and did not gamble. After the raids were made he made bonds three times for parties who called on him--that is, put up the money. The people who were in the games for whom he made bonds were playing poker. There was no gambling carried on in the rooms rented by appellant. Appellant rented out these rooms.

On cross-examination, over the objection of appellant, the court permitted the attorney for the State to ask the witness if he had not been convicted of a felony and sent to the penitentiary, to which question witness replied that he was convicted in 1909 for selling whiskey and sent to the Federal prison at Atlanta, Georgia, for eighteen months.

1. The appellant contends that the testimony was not sufficient to sustain the verdict. The testimony sneaks for itself. It was sufficient to sustain the verdict. It tended to prove the allegation of the indictment charging the appellant with running, maintaining and operating a gambling house.

2. The appellant contends that there was no direct evidence to show that he was running a gambling house and it was therefore error for the court to allow witnesses to say that they understood it was appellant's place and that he seemed to be in charge. There was no error in the ruling of the court. The above statements were not strictly opinion evidence. The witnesses were rather stating a conclusion of fact drawn from appearances which they detailed. As was said by Chief Justice COCKRILL of similar testimony in the case of Fort v. State, 52 Ark. 180 at 180-87, 11 S.W. 959, "This, however, was only a conclusion of fact drawn from appearances. It was with reference to an ordinary transaction which any man of common understanding was capable of comprehending, but which could not be reproduced or described to the jury precisely as it appeared to the witness; and while it may not be the right of a party to demand an expression of opinion of a witness under such circumstances, it is not reversible error to permit it." See other cases there cited. Prewitt v State, 150 Ark. 279, 234 S.W. 35. 3. The court did not err in permitting the prosecuting attorney to ask the appellant on cross-examination if he had not been convicted of a felony and sent to the penitentiary. When appellant took the witness stand, ...