State v. Morris

91 A. 998, 28 Del. 226, 5 Boyce 226, 1914 Del. LEXIS 31

• Court: New York Court of General Session of the Peace
• Decided: January 14, 1914
• Status: Published

Opinion

Conrad, J.,

charging the jury:

Gentlemen of the jury:—Charles B. Morris, the accused, stands indicted before this court and is on trial before you under an act of the General Assembly, entitled “An act-for-the suppression of gaming,” passed as long ago as 1857 (11 Del. Laws, c. 454), so that it is old enough to be good. It is the province of the court when called upon, to interpret and construe the law, and it is your province.as members of the jury to take the law and to fit the facts into it and from that make up your verdict. This act provides:

“Section 1. That if any person or persons shall keep or exhibit a gaming table, faro bank,_ sweat cloth, roulet table, or other device under any denomination, at which cards, dice or any other game of chance is played for money, or other thing of value, or shall be a partner or concerned in interest in the keeping or exhibiting such table, bank, sweat cloth, or other device, he, she or they shall be deemed guilty of a misdemeanor,” etc. Rev. Code, 961.

It is that law that the counsel in this case have asked us to construe.

[1] The accused is charged under the first and third counts of this indictment with keeping or exhibiting a gaming table. In the opinion of the court a person keeping a gaming table is liable under the statute; and by keeping, the ordinary meaning of the word is applicable. The word keeping means to maintain, to control, to carry on, to manage. A gaming table is a table used for gaming purposes, a table upon which games of chance are played for a stake, and the evident idea in the minds of the legislators was that the keeping of a table to be used for gaming purposes and called a gaming table was an important and almost necessary adjunct in the matter of gambling, and that in prohibiting the keeping or exhibiting of a gaming table, the effect would be to lessen the offense of gambling.

[2] Under the first and third counts of the indictment in this case the accused is charged with exhibiting and keeping (on different dates) a gaming table. The offense so charged is fully sustained when the fact is proven to the satisfaction of the jury that the accused kept or exhibited a gaming table, and the matter of the accused being concerned in interest in, or deriving a profit from it, is not an element in the charge. The keeping and exhibiting are the only things that need be shown under these two counts. That disposes of the first and third counts.

In the second and fourth counts the accused is charged with keeping and exhibiting a gaming table in which he was concerned, or in which he had an interest. The court feel constrained to say that under the evidence adduced in this case in its opinion the charge made in the second and fourth counts of the indictment that the accused was concerned in interest in the keeping or exhibiting of a gaming table has not been sustained, and the charges made in those two counts are withdrawn from your consideration; so that the question left for your determination is, whether or not the accused kept or exhibited a gaming table, as defined. You are to weigh, gentlemen of the jury, and consider the evidence as you have heard it from the stand. If the state has proven to your satisfaction that the accused kept or exhibited a gaming table, that it was under his control or management, then the offense charged has been sustained, and your verdict should be guilty, regardless of the fact that no profits were shown to have been proved as received by the accused from the table.

[3, 4] We also charge you, gentlemen of the jury, that the accused is presumed to be innocent until he is proven guilty beyond a reasonable doubt, and the burden is upon the state to prove its case, so that if after consideration in a careful conscientious way, as reasonable, fair-minded men, you have a reasonable doubt as to the guilt of the accused, then you should find him not guilty. The matter is left with you.

Verdict, guilty.