Miller v. Commonwealth

77 S.W. 682, 117 Ky. 80, 1903 Ky. LEXIS 281

• Court: Court of Appeals of Kentucky
• Decided: December 11, 1903
• Status: Published

Opinions

Opinion op the cotjbt by

JUDGE HOBSON

Apfirming.

The first question made in this case is as to the sufficiency of the indictment, which is as follows: “The grand jury of Fayette county, in the name and by the authority of the Commonwealth of Kentucky, accuse George Miller and Tim McCauliffe of the crime of setting up a faro bank, committed as follows, viz.: That said George Miller and Tim McCauliffe on the 23d day of December, 1902, in the county aforesaid, did unlawfully and willfully in rooms in a building on Limestone street, between Main and Short and over what is known as Heinl’s saloon, set up, and carry on, keep, manage, conduct, and operate, a faro bank and other machines and contrivances commonly used in betting, whereby money and property might be won and lost, and at ivhich money and property, and checks representing money and property, were won and lost, against the peace and dignity of the Commonwealth of Kentucky.”

The indictment is based on the following statutory provisions :

“That whoever, with or without compensation, shall set up, carry on, keep, manage, operate or conduct, or shall aid or assist in setting up, carrying on, keeping, managing, operating or conducting a keno bank, faro bank, or other machine or contrivance used in betting, whereby money or other thing may be won or lost; or whoever shall, for compensation, percentage or commission, set up, carry on, manage, operate or conduct a game of cards, oontz or craps, ' whereby money, or other thing may be won or lost, or shall with or without compensation, percentage or commission, aid, assist, or abet in setting up, carrying on, managing, operating or conducting any game so set up, carried on, managed, operated or conducted, for compensation, percentage or commission, shall be fined five hundred dollars and costs, and confined in the penitentiary not less than one nor more than three years; shall be deemed infamous after conviction, and be forever thereafter disqualified from exercising the right of suffrage, and from holding any office of honor, trust or profit, whether it be State, county, city or municipal. The judgment of conviction in each case shall recite such infamy and disqualification, and shall not be valid without such recital. The provisions of this section shall not include nor be applicable to persons who play at such games, tables, banks, or with such machine, or contrivance, unless they take other part in setting up, conducting, keeping, managing, operating or carrying on such tables, banks, games, machine or contrivance, or aid or assist in setting up, keeping, conducting, managing or operating such game, bank, tables, machine or contrivance.” Ky. St., 1899, section 1960.

“The change of name of any of the games, banks, tables, machines or contrivances mentioned or included in the preceding section, shall not prevent the conviction of any person violating the provisions thereof; but no prosecution shall be commenced under said section later than five years after the commission of the offense, nor shall its provisions apply to persons who sell combination -or French pools on any regular race track during the races thereon. An indictment for. a violation of the preceding section may charge the accused in one count with any or all of the offenses mentioned or included therein.” Ky. St., 1899, section 1961.

The defendants demurred to the indictment for duplicity. The demurrer was overruled. A separate trial was awarded, and on the trial of the appellant, Miller, the court limited the evidence to the setting up of a faro bank. By section 121, Or. Code Prac., the indictment must be direct and certain as regards (1) the party charged, (2) the offense charged, (3) the county in which the offense was committed, (4) the particular circumstances of the offense charged, if they be necessary to constitute a complete offense. Under this section it has been held that the indictment in the part of it naming the offense charged must correctly designate the offense. Brooks v. Commonwealth, 98 Ky., 113, 17 R., 698, 32 S. W., 103; Commonwealth v. Tupman, 17 R., 217, 30 S. W., 661. The indictment before us in this part of it specifies .the offense with which the defendants were charged as the crime of setting up a faro bank. This was the only offense charged, although in the accusative part of the indictment it is stated that he had not only set up a faro bank, but other machines and contrivances commonly used in betting; for the latler words must be rejected as surplusage, as only the offense of setting up a faro bank is charged against the defendants in the part naming the offense. Under this indictment no conviction could be had except for setting up or carrying on a faro bank, and the court properly so ruled, excluding all evidence except that relating to this offense.

The proof leaves no doubt that the defendant Miller set up and carried on a game at which money and property was won and lost. He rented the rooms and was- the dealer in the game; but it is insisted that the game was not faro, but baccarat. Faro is played with a pack of fifty-two cards dealt from a bos, with a layout of thirteen cards spread out on the table, or fastened to the table, or painted on it, or on the cloth over it. The dealer deals out the cards from the bos. The players bet against the bank or dealer, placing their money on some card on the table, and winning, or losing according as the cards come out of the bos. In baccarat a similar bos is used. The cards are dealt in the same way, escept there are no> sevens' in the deck; the pack therefore consisting of forty-eight cards. The betting is. done in the same way, and there seems to be no difference between the game of baccarat and faro, according to the evidence, escept that in baccarat the sevens are not in the deck, and there is no seven in the layout on the table; and from the absence of the seven, as esplained by the witness, “If you put a bet on the corner, the five nest to the sis, it is not a bet — it don’t take the nest card, because there is no nest card there, but in faro it would involve the five or seven.” Escept for the absence of sevens, the game, of baccarat, as shown by the evidence, is precisely the same as a game of faro in the way the game is played, the way the bets are made, and in every other respect. In illustration of this, it may be added that some of the witnesses for the Commonwealth, who had more or less esperience in playing faro, took the game dealt by appellant to be a game of faro. On these facts the court instructed the jury as follows:

“(1.) • If the jury believe sfrom the evidence beyond a reasonable doubt, that the defendant, George Miller, in Fayette county, Kentucky, between the 23d day of December, 1897, and the 23d day of December, 1902, in a room in a building on Limestone street between Main and Short streets, in Lexington, Kentucky, and over what is known as Heinl’s Saloon, conducted or operated a faro bank, which was commonly used in betting, and that money, or che.cks representing money, was then and there bet, won, and lost upon games played upon said faro bank,, the jury should find the defendant guilty, and unless the jury do so believe from the evidence beyond a reasonable doubt, they should find the defendant not guilty.

“(2.) If the defendant did conduct or operate a machine or contrivance commonly used in betting, and if, upon said machine or contrivance, money or . chjecks representing money were bet, won, and lost, yet the jury should find the defendant not guilty unless they believe from the evidence beyond a reasonable doubt that such machine or contrivance was a faro bank.

“(3.) A game of cards played according to the rules of what is generally known as faro is a game of faro, and, even if the game so played is modified or changed in some immaterial particular, it is still a game of faro, provided the game as played is played in accordance with the rules and principles by which a game of faro is played, unless the game as so modified or changed is generally known and called by some other name than faro. Any game not played in. accordance with the rules and principles of faro is not a game of faro, and any game not played in strict accordance with the rules and principles of faro if the game as played has a commonly known and distinctive name not that of faro, is not a game of faro.”

The appellant complains of so much of the charge of the court as required the game to be “generally known and called by some name other than faro,” and asked the court to charge the jury to find for him if the game had a distinctive name other than that of faro, commonly given to it by persons participating in it and familiar with it. ' It is earnestly insisted for him that the majority of people may never have heard of the game of baccarat, and that it was erroneous to require that the game should be generally known and called by that name. But it will be observed that this qualification made instruction 3 more favorable to the defendant than the instruction would have been without it. But for it the jury would have been authorized to convict the defendant if the game as played was played in accordance with the rules and principles of faro, although modified or changed in some immaterial particular. Not only so, but by the last clause of the instruction, if the game as played has a commonly known and distinctive name other than faro, there could be no conviction unless it was played in strict accordance with the rules and principles of faro.

These instructions were more favorable to the defendant than the law warranted; for by section 1961, Ky. St., 1899, above quoted, the change of the name of any of the games mentioned in section 1960 shall not prevent the conviction of any person violating its provisions. By section 459, Ky. Stat., 1899, there shall be no distinction in the construction of statutes between civil or criminal and penal enactments. All statutes shall be construed with a view to carry out the intention of the Legislature, and, by section 460, are to be construed liberally, with a view to promote their objects. The purpose of the provision in section 1960, that the change of name shall not prevent a conviction is to avoid the confusion arising from the fact that games frequently have in the sporting world names not generally known among the class of people constituting the grand juries.

The rule is well settled that only the substance of the issue 'need be proved. 1 Bishop on Crim. Pro., section 488b; Jones v. Com., 2 Ky. Law Rep., 68; Williams v. Com., 78 Ky., 93; Sutton v. Com., 97 Ky., 308, 17 R., 175, 30 S. W., 661; Boyd v. Com., 22 R., 1017, 59 S. W., 518. The defendant was informed by the indictment that he was charged with carrying on a faro bank in a certain house on a certain street in Lexington. He was therefore not misled as to the nature of the accusation against him, and if tfte game he carried on there was, in substance, ¿ game of faro, although called baccarat, the substance of the issue was proved, and the defendant was properly convicted. In lieu of instruction 3 the court should have simply told the jury that if the game was played in accordance with the rules and principles of the game of faro, it was a game of faro within the meaning of the instructions, although ff was modified and changed in some immaterial particular.

When the witness Ed. Oder was on the stand for the Commonwealth, and testified to seeing some games going on in the room, he was asked who was the dealer, and said he did not know. Being then asked if he knew the defendant Miller, he said he did. He was then asked if he was the dealer, and answered he did not think he was. Being then asked if he testified before the grand jury a month or sis weeks before, he said he did. Then this occurred:

“Q. Didn’t you testify that Mr. Miller was the dealer? (Defendant objects, which objection is sustained by the court.) In argument upon said objection) the Commonwealth attorney made, in substance, the following statement: U do not intend to be trifled with in this manner, when I know that the witness testified before the grand jury that he played at a game of faro with Miller dealing, and that we sent out for Charley Oldham, and fixed the date and time.’ The attorney for defendant moved the court to set aside the swearing of the jury because of the prejudice this statement by an attorney for the Commonwealth would make. Motion overruled. Defendant excepts.” It appears from appellant’s affidavit that the court ruled the Commonwealth attorney should make no such statement, but it is urged that for this the swearing of the jury should have been set aside. The remark was addressed to the court, and it must be presumed that the jury would try the case according to the evidence, as they were sworn to do, and not be governed by what one of the attorneys might improperly say in argument to the court. While the Comonwealth attorney, so far as appears, should not have used such words in the presence of the jury, we do not see that the defendant was prejudiced in any way by the remark, for when he came on the stand in his own behalf he admitted being the dealer in the game, and the only question, in effect, made, was whether it was faro or baccarat, and the exact facts on this question were proved by the witnesses which he himself introduced, there being no substantial contradiction in the evidence as to them.

Appellant also relies on misconduct in the Commonwealth’s attorney in his concluding argument to the jury. Rut there is nothing in the record to show this except the affidavit of the defendant Miller filed on the motion for new trial. The decisions of the court upon the motion for new trial are not subject to exception. Or. Code Prae., section 281. The exceptions of a party shall be shown upon the record by a bill of exceptions prepared, settled, and signed as provided in the Code of Practice in civil cases. Or. Code Prac., section 282. None of the matters complained of as to the concluding argument of the Commonwealth’s attorney are shown by the bill of exceptions. They can not, therefore, be considered in this court. Neither can the objections to the panel of the jury. Curtis v. Commonwealth, 110 Ky., 845, 23 R., 267, 62 S. W., 886, and cases cited; Knoxville Nursery Co. v. Com., 108 Ky. 6, 21 R., 1483, 55 S. W., 661.

The rulings of the court were more-favorable to the defendant in the admission of evidence than they should have been. In a case like this the court may properly allow the witnesses to testify to what they saw going on in the room, and also allow proof to be made as to what a game of faro is, and then, on all the evidence, the jury should determine whether or not the defendant set up or carried on a faro bank.

On the whole case we see no error to the substantial prejudice of the defendant, and the judgment complained of is therefore affirmed.