State v. White

147 N.W. 264, 34 S.D. 96, 1914 S.D. LEXIS 81

• Court: South Dakota Supreme Court
• Decided: May 18, 1914
• Status: Published

Opinion

McCOY, J.

[1] Appellant was convicted of violating section 395 of the Penal Code, whioh provides as follows:

“It is unlawful to maintain or keep any table, cards, dice or any other article or apparatus whatever, useful or intended to be used in .playing any game of cards or faro, or other game of chance, upon which money is usually wagered.”

From the judgment of conviction, and order overruling a motion for a new trial, defendant -has appealed.

It is contended that the evidence is insufficient to sustain the verdict. There was testimony introduced- tending to show that on the 22nd day of November, 1911, a poker game for money was started in a certain room in a certain building -owned by appellant in the City of Belle Fourche; that such game -was, without cessation, continued throughout the night -of the 22nd and until late in the night of the 23rd w-hen -the sa-me was stopped by the sheriff -arresting appellant and others engaged in said game. This game was .played upon á table with cards, and poker chips. At the time the arrests were made appellant was acting as -cashier, or stake holder of the game and settled in -cas-h- with those having poker chips; -this room was commonly reported to be the quarters o-f appellant. One witness testified that he -had been in that room a-t different tim-es before and had played poker for money, — that there was a davenport or bed in the room, — that he had seen appellant lie down and go to sleep -there at different times, — had seen, him run the game and bought chips from him-, — that, when the game was through, he would cash chips for money whether he played or not,— that during the night in -question they changed -decks of cards,— that appellant on some occasions produced new decks and that when a new deck was wanted some one produced it from his pocket. The officers w-ho made the arrest testified that they knocked on the door and that appellant opened the door and told them to come in. The testimony also- showed that about the first of October, 1911, the room in which said game was being played had been rented to the Owls Club, and that the Owls Club kept cards, tables and poker chips for the -amusement of its members, but that gambling for money was prohibited, by the rules of sai-d club, and that at the time this game in question was being played the appellant was not in control of said room, but that appellant was a.member of th-e Owls Club. Appellant testified that he placed the poker chips in the club room, that they were loaned to the club by Dan Roberts, a member. It is the contention of appellant that the tables, cards and poker chips were the property of the Owls Club, which they found in the room and casually used while playing this game, and that appellant was not then and there maintaining and keeping tables, cards and poker chips with the intent of gambling. While we are of the view that the Owls Club had the legal right to keep and maintain tables, cards and poker Chips purely for the purpose of the amusement of its members, and with no intent of gambling, still, we are of the view that the members of such club might be guilty of violating the law by themselves maintaining ¡and keeping, in the rooms of the club, such articles or any of them, for the purpose of gambling. It is conclusive that gambling was done at the time in question, and the intentions of parties may be proven by their acts, as well as by words, and -it often times occurs that one’s acts speak louder than his words. This was a matter the jury had a .right to take into consideration in this case in determining whether or not appellant was a party to the intentional maintaining and keeping of tables, cards or poker chips, or any or either of such articles, in said room for use in gambling. It will be observed that the offense charged consists in the maintaining and keeping of tables, cards, or any other article intended to be used for the purpose of gambling. The offense here charged is not for maintaining or keeping a room or place where gambling is permitted. The character of the place or who owns or controls it does not enter into the definition of the offense, but is only incidental in connection) with the maintaining and keeping of tables, cards and other articles. Now, it appears from the evidence in this case, that while this game of poker was in progress it became necessary to have new decks of cards, or at least the players in the game desired new decks, and that on some of such occasions appellant went down into his own pockets and produced new decks, clearly indicating that he himself was keeping and maintaining in his own possession new decks of cards for the needs and necessities of the poker game. There is no evidence that these new cards -were any part of the property or paraphernalia of the Owls Club, or that it was customary or according to the rules of such club that the individual members thereof should at all times have their pockets loaded with new decks of cards for the amusement of the members or visitors of the club. We are of the view that there was sufficient , evidence to sustain a conviction.

[2]' The court among other -things,' instructed the jury that “The Owls Club bad the right to have tables, chips and cards in their rooms for the purpose of playing games for amusement, but had no right to keep or maintain their tables, chips, and cards for the purpose of being used for playing any games of chance on which money was wagered. And, as a matter of law, that any member of the Owls Club' who¡ knowingly permitted, assisted or advised others to play games of chance with the paraphernalia, fables, chips 'and cards' of the club, violated the statutes of this state under which this defendant is charged. And if you believe from' the evidence beyond doubt, that at or about the tithe charged in the information this defendant aided, abetted, advised or assisted either members of the club or outsiders -to play games of chance with the tables, chips and cards of the club he violated the statutes of this state, and is guilty as charged.” This instruction was excepted to and is now' urged as error. W'e are of the view that the individual persons who constitute the membership- of a club, composed of a collection of individuals, may be guilty of keeping and maintaining tables, cards or other articles for the purpose of gambling, although the same articles may be part of the paraphernalia of the club. A majority of the members of the club might not assist or contribute in the least in the keeping and maintaining of such articles for such purposes, while other members of the same club might assist and contribute in their keeping for the unlawful purpose of gambling. The purpose for which a thing is kept is often determinable from the use to which it is put. Hence, if the defendant, as an individual member of such club, kept fables, cards or chips in the rooms of said club for the purposes of gambling, then defendant would be guilty of the offense charged. This was the purport of the instruction given. All assignments of error have been carefully considered..

Finding no error in the record the judgment and order appealed from are affirmed.