Wolfe v. People, 12685.

• Decision Date: 21 December 1931
• Docket Number: 12685.
• Parties: WOLFE v. PEOPLE.
• Court: Colorado Supreme Court

6 P.2d 927

90 Colo. 102

WOLFE v. PEOPLE.

No. 12685.

Supreme Court of Colorado

December 21, 1931

In Department.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Harry Wolfe was convicted of unlawfully keeping a place to be used for gambling and of keeping and exhibiting a gaming table establishment, and device to win and gain money, and he brings error.

Affirmed.

Bernard J. Seeman and Jacob L. Sherman, both of Denver, for plaintiff in error.

J. S. Underwood, Former Atty. Gen., Clarence L Ireland, Atty. Gen., and E. J. Plunkett, Asst. Atty. Gen for the People.

HILLIARD J.

Harry Wolfe, plaintiff in error, and one Jones, were prosecuted on an information charging violations of sections 6863 and 6864, C. L. 1921. There were four counts: (1) Unlawfully keeping a place to be used and used for gambling; (2) keeping and exhibiting a gaming table, establishment, and device to win and gain money; (3) engaging in gambling for a livelihood; and (4) playing at a game for money and property of value. Jones was found guilty on all counts, Wolfe on (1) and (2), and Wolfe alone seeks review. At the conclusion of the people's evidence, Wolfe moved for directed verdicts of not guilty on the ground, generally, that the evidence was insufficient. This motion was denied. He then rested, without offering any evidence, and renewed his motion, which was again denied. The substance of the assignments of error is that the court erred in denying these motions and in admitting certain exhibits. The sufficiency of the information is not attacked.

There was evidence that the Sarconi Billiard Company occupied and was in control of the premises where the charged offenses occurred. It was admitted that the company was a corporation and Wolfe one of its officers. A people's witness testified that in a small private room near the cigar stand maintained by the company on the premises there was a board or card on which odds on football and other games were posted; that he had made wagers at such odds during the eighteen months preceding the charges, and had lost some $400. The bets were invariably made with Jones, never with Wolfe.

Exhibits B and E, objected to, were checks which the same witness identified as having been drawn by him to 'Cash' and wagered at the company's place of business on football games, the odds being supplied by Jones. Each of these exhibits was indorsed 'The Sarconi Billiard Co., by H. E. Wolfe,' and there was evidence that Wolfe had admitted such indorsements were made by him and that the checks had been paid. Exhibits F, G, H, and I, admitted over objections, were applications of the Sarconi Billiard Company to obtain business licenses required by city ordinances. Exhibit F was signed by the defendant. They tended to show the corporation's occupancy and control of the premises where the offenses were charged to have been committed and the connection of Wolfe with the company's activities there. The inference drawn from them was that Wolfe must have known what was transpiring in the place of business of the company of which he was an officer, and we are in accord with the learned trial judge who held that the exhibits were relevant and competent and properly to be considered by the jury.

Elements of weakness thought to be present in the case have been emphasized by counsel for Wolfe. It is pointed out that no witness testified to a single instance of betting by Wolfe or that Wolfe witnessed or saw any wagering. There was no direct evidence that Jones was in the employ of Wolfe or of the company, but there was evidence that Jones was continually about the premises and gambled there, and, as the trial court remarked, 'does nothing else,' and that Wolfe was active in the conduct of...