Walker v. State

Decision Date07 March 1973
Docket NumberNo. 3--972A62,3--972A62
Citation155 Ind.App. 404,293 N.E.2d 35
CourtIndiana Appellate Court
PartiesJames F. WALKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

Ralph R. Blume, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Anthony J. Metz, III, Deputy Atty. Gen., for appellee.

SHARP, Judge.

In this case the Appellant, James F. Walker, was charged by way of affidavit of the offense of professional gambling under I.C.1971, 35--25--1--2, Ind.Ann.Stat. § 10--2330 (Burns 1972). The Appellant explicitly waived a trial by jury and this case was tried before the trial court alone. The Appellant was found guilty by the trial court and sentenced to the Indiana State Farm for a period of six months and assessed a fine in the sum of $500.00. Motion to Correct Errors was duly filed and overruled resulting in this appeal.

Examining the factual record with the inferences most favorable to the State it is disclosed that on April 5, 1971 three members of the Fort Wayne Police Department along with a member of the Indiana State. Police went to 1233 South Lafayette Street in Fort Wayne, Indiana to execute two arrest warrants for Robert L. Stewart and James Bates, Sr. The arrest warrants were in reference to the offense of professional gambling. These police officers arrived at the above address at approximately 1:00 o'clock P.M. The building at this address faces Lafayette Street with a door to the south portion on the north end of the building and a door to a storeroom or a utility room on the south end of the building. The building is used as a cigarette and cigar store with the business name of Stewart's Smoke Shop. When the police arrived at Stewart's Smoke Shop they knew that James Bates, Sr. was in the south portion of the building and that Robert Stewart was in the store portion of the building. The police officers entered the store building portion of the Smoke Shop building first. They advised Robert L. Stewart that they had a warrant for his arrest, read the warrant to him, advised him of his rights, and asked him for a key to the south portion of the Smoke Shop. Robert L. Stewart was the operator of the business and the owner of the real estate upon which the Smoke Shop was situated. One detective then stayed with Stewart while two other detectives went to the south door of the Smoke Shop. At this point it is necessary and desirable to consider the precise testimony of officer Lloyd Ellis:

'Q And then, as I understand your testimony, you asked him for a key. Now, what was this key for?

A Well, this key would be for the room that we seen Mr. Bates earlier go into this room.

Q How long prior to your arrival had you seen Mr. Bates go into this room, if you can recall?

a We went there earlier and we were hoping that there would be more people in there, and we had seen Mr. Bates, he was the only one we knew definitely was there, and it was about fifteen or twenty minutes prior before that he arrived, that he went into this back room there.

Q All right, you asked Mr. Stewart, as I understand it, for the keys to this other room, is that correct?

A Yes.

Q Did he give it to you?

A Yes, he gave me a key.

Q Then what, if anything, did you do?

A I left Detective Platt there with Mr. Stewart and myself and Detective Snyder went out the door, the Smoke Shop, and went approximately twenty feet to the other door, and I tried the key and it unlocked, but there was evidently another lock on the inside that had to be unlocked. So I knocked on the door, and after this Mr. Bates came to the door, opened the door and stepped back and I stepped in.

Q Was there any conversation that occurred at that time?

A I think I just said to him, 'James Bates,' and he just kind of nodded, and as he did he stepped back into the back part.

Q He stepped back away from you when he saw you?

A Yes, it would be about three steps, as I recall. There's a partition, sort of like a wind-break, as you open the door so that you can't see into the building. You've got to walk in about two steps and then turn about a step or two steps and you're behind that partition. He stepped back toward, back by the partition.

Q What, if anything, did you do at that time?

A I stepped back with him.

Q And what, if anything, did you observe at that time?

A Well, as soon as I stepped back past this partition, wind-break, or whatever you want to call it, I observed the defendant Mr. Walker sitting at a table with the adding machine and the number slips, and . . .

Q Detective Ellis, with regard to number slips, can you tell the court what you mean by number slips?

A Well, number slips are any type of paper or a slip of paper, it can be any form, with a combination of three numbers crossed, or they can be boxed or squared, with a dash on them, there will be a figure such as a $1.50, and these are bets that are made on the stock market quotations, advances, declines and unchanged for the day. And also you will have a number or code number for the writer who will be on this slip and initials of the person purchasing this slip, and down at the bottom will be the total amount bet on the slip; there will be a date on this slip. These are slips that are used in the numbers.

Q You mean the people purchase these slips with a number on them for money?

A Right.

Q And this is wagering, correct?

A Yes, wagering.

Q All right, now, prior to April 5, 1971, had you occasion to see or personally examine number slips, were you familiar with them, in other words?

A Yes, we have made purchases on these number slips.

Q And, as a matter of fact, prior to April 5, 1971, had you been engaged in investigation of the numbers racket?

A Yes, sir.

Q In the course of that investigation, did you have occasion to see or familiarize yourself with number slips?

A Yes, sir.

Q And the numbers game as it was played at that particular time?

A Yes, sir.

Q And are you telling the court, from your experience, that the slips that you observed on the table in the premises at 1233 South Lafayette Street were, in your opinion number slips?

A Yes, sir, they were number slips.

Q All right, would you continue, please, then, to relate to the court what you observed on your entry into this side room?

A Well, as I came around the side there, I looked over, I looked around the whole room, and as I looked over, I saw only one other person there in this back room who was James Walker, and there was two round tables sitting side by side and these slips were stacked in different stacks and they had an adding machine tape on with a total, and they were stapled together--the slips were stapled. There was stacks of money that had been stacked into piles, and there was some change there, I believe, and an adding machine and some scratch pads with figures on the table. These were sitting directly in front of where Mr. Walker was sitting.

Q Now, as I understand it, he was seated at one of these round tables?

A Yes, sir.

Q And what, if anything, did he do upon your entry into the room?

A Nothing. He just leaned back in his chair and sat there.

Q And before you entered this room and observed the defendant and the money and number slips on the table, as you have testified, did you conduct any search of that room?

A Of the back room?

Q Yes.

A No, I hadn't conducted any search until after I placed Mr. Bates under arrest, read the warrant to him and advised Mr. Walker he was under arrest on a preliminary charge of professional gambling. I searched both subjects.

Q Did you have to move anything or uncover anything to see these number slips, money, adding machine or the defendant?

A No, before we picked anything up or moved anything, we called for a photographer and had him photograph it just as we found it when we walked in.

Q All right, now you've stated that you placed Mr. Walker under arrest at that time for a preliminary charge of professional gambling, is that correct?

A That's right.

Q What, if anything, did you do at that time?

A Well, I searched the subject.

Q What, if anything, did you find?

A I found in his pockets, his pants pocket, I found $250 and some odd change and two slips that I identified myself as being number slips and some other personal papers, car registration and some odds and ends that were in his jacket, and things like this.'

On cross-examination by the Appellant's counsel, Officer Ellis testified, in part, as follows:

Q Officer, when you first entered the building, would you be able to observe these two tables and the objects shown here by looking through the front door?

A From outside, standing on the sidewalk?

Q Without going inside the room?

A No, you would have to . . . You couldn't see it standing in the doorway. This wall here, that you see here, where these two tables are against it, is a thin partition, and the doorway is about two foot, and you have to step over and then up, and this is where Mr. Bates stepped. He reached around this corner and unlocked this door, and I stepped up here to come up where he was standing and then I look over to the side and there was these two tables (referring to State's Exhibit No. 1).

Q But you have to walk inside the building to get the view of these tables, is that right?

A Yes, you have to go inside the building approximately two foot.

Q So that simply a plain glance through the door would not reveal those tables?

A No, you couldn't see them from standing in the doorway.

Q Now, where was Mr. Bates in relation to those tables when you first observed him?

A When I first observed Mr. Bates, he came around that corner of that partition, reached over, unlocked the door, and there is a small step about the size of this (indicating) to step up and, say, like the door was here. He unlocked it and I stepped around about this far (indicating) and he backed up--he backed up past that partition and I backed up to him, and there would be the tables. He was standing right at the edge...

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