89 Neb. 721 | Neb. | 1911
Defendant was convicted in tbe district court for Gosper county of tbe crime of gambling, and sentenced to pay a fine of $150 and costs of prosecution, from wbicb be prosecutes error to this court.
Tbe giving of instruction No. 7 is assigned as error upon tbe ground that “there is absolutely no evidence to justify, or even excuse, submitting sucli an issue,” By
It is further urged that the court erred in permitting the county attorney, while upon the stand as a witness, to testify that he went to the telephone office in Elwood and examined the record of calls from Elwood to defendant at Holdrege on the afternoon of February 20, the day the Colliers first reached Holdrege, and that the book in the telephone office for that date showed a call to defendant at Holdrege from one McDonald, who it is claimed participated with defendant in the poker game for which defendant was being prosecuted. We think this evidence was improperly received, but its admission was not error, for the reason that this same matter had already been properly shown by the operator in charge of the telephone office on that day. Fike v. Ott, 76 Neb. 439.
Instruction No. 5 is objected to for the reason that it submitted the issue that “defendant did unlawfully play a game of cards for * ■ * * other property of value.” It is urged that this is wholly unsupported by evidence; that this instruction permitted finding defendant guilty of playing with any person; that its first paragraph reads, “Milton Winslow or other persons,” -while the information . charges him with playing with “Milton Winslow and
The trial court is severely arraigned by counsel, who states in his brief: “The action of the court at 1489 in intimidating the witness and conveying to the jury his desire that they convict.” The witness upon the stand was troubled with a very defective memory. To nearly every question asked him he answered that he couldn’t remember. The record shows: “Q. Did you play poker during that time — the year 1908 — or any other card game for money with Mr. Milton Winslow or William J. Ainlay? A. Not that I remember of. Q. Did. you or did you not? A. I can’t recollect. I don’t remember. Q. I want an answer to that question, one way or the other. (Witness hesitates.) 1489. The Court: I want you to answer that question. You may take all of the time you want to think it up.” This is the language used by the court which causes counsel to say that the court was trying to intimidate the Avitness and to convey to the jury his desire that they convict. The action of the court at 1491 and 1492 is also assailed. After the court had told the witness at 1489 that it wanted him to answer the question, but that he might take all the time he wanted to think it up, the record proceeds: “Well, I can’t remember. 1490. That is not the answer. Will you say that you did or did not in Collier’s place or house in Elwood, Nebraska, during the year of 1908, play cards or a game of poker or any other game for money with Milt Winslow or William Ainlay? Now, answer that question by yes or no.” This was objected to, when the court said: “Now, I want you to answer that question.” Counsel excepted to this statement of the court. By the witness: “Well, I can’t answer it by yes or no, because I don’t remember. Q. I insist on getting an answer to that question before he leaves the Avitness-stand. .The Court: Have you any further answer to make to that question?” He was then asked by counsel for th.e state to say yes or-no, when he answered: “I can’t when I don’t know.”
In attempting to make out the case for the state, counsel was obliged to rely upon witnesses friendly to defendant, and who, the evidence fairly indicates, were in the habit of engaging in “games” themselves, and in the course of their examination he subjected them to what would ordinarily be termed quite rigid cross-examination. This is strenuously objected to; but under the peculiar conditions surrounding this case we do not think the court abused its discretion in that regard. The question as to how far, if at all, a party shall be permitted to cross-examine or put leading questions to his own witnesses where they appear to be hostile or unwilling is in the discretion of the trial court, and its rulings in such matters will not be disturbed except for manifest abuse of discretion. Hackney v. Raymond Bros. Clarke Co., 68 Neb. 624; St. Joseph & G. I. R. Co. v. Hedge, 44 Neb. 448; Welsh v. State, 60 Neb. 101.
The petition in error contains over 800 other assignments of error, which time forbids considering in detail. Suffice it to say that we have carefully read the entire record and the briefs of counsel, and are unable to discover any reversible error in the rulings of the court upon the trial.
Finally, it is urged that the verdict is not sustained by the evidence. The conviction in ' this, case rests quite largely upon the testimony of one Harry Sugdon, who admitted that he had been arrested for running a gambling room, and that the county attorney had promised him that, if he would testify in this case against the defendant, he would not be fined or imprisoned. Defendant positively denied the testimony of Sugdon, but the latter is corroborated to a considerable extent by other witnesses in the case, as well as by the action of defendant in aiding the Colliers to keep away from Elwood until after the preliminary examination. In charging the
Finding no reversible error in the record, the judgment of the district court is
Affirmed.