60 N.J.L. 307 | N.J. | 1897
The opinion of the court was delivered by
The plaintiff in error, defendant below, was indicted for keeping a disorderly house in the township of Union, in the county of Hudson. The indictment charged that the defendant kept a place in that township in which he permitted people to engage in betting and wagering on the events of races of horses, mares or geldings. The indictment was presented at the April Term, 1896, and the offence was charged to have been committed between March 1st, 1895, and the time the indictment was presented.
No objections were taken to the form of the indictment before the trial, and no errors have been assigned drawing in question its validity.
The evidence introduced and, as it stands, undisputed, shows at this place there are three buildings; one is a brick building in which the defendant kept a saloon. The main floor
The evidence is conclusive that in the northerly of these buildings, it being the long frame building, that gambling, betting, bookmaking and wagering on horse races during the time mentioned in the indictment were carried on. The evidence is just as conclusive that in the southerly building during the time laid in the indictment, poker, faro and roulette games were being played for money and other gambling games were there engaged in. There is evidence showing that the usual way of getting into the building to the north was by going into the front of the saloon kept by the defendant, passing out the rear thereof, and entering the building by the rear door thereof. Gambling games were carried on also in this building, at which money was won and lost. The evidence is that large crowds of men were often seen in and about this place, going in and coming out of the saloon of the de
Reference is made to so much of the evidence to show that the question who it was that kept and maintained this disorderly place was one which must be taken by the jury to determine.
At the close of the case defendant requested that the trial court instruct the jury to acquit. Upon the refusal of the court to so instruct, the defendant prayed an exception, which was allowed and sealed, and error is assigned upon such refusal.
This exception and assignment of error has no placé in the criminal practice in this state. Error cannot be assigned on a trial of an indictment upon the refusal of the court to direct an acquittal.
Besides, the evidence was amply sufficient, at this point, to go to the jury to pass upon the question whether the defendant had control of either of the buildings in which betting on horse races and other forms of gambling had been carried on.
The defendant was called as a witness in his own behalf. He was the only witness called for the defence. He denied that he had anything to do with the buildings north or south of his saloon or tavern and restaurant. He testified that his mother owned the building to the north, and that it was and had been under her control. He admitted that he had frequently seen and had knowledge of crowds of people gathered about the building.
His mother was recalled by the state, and in rebuttal testified that she owned the building to the north, but exercised no control whatever over that or the saloon and restaurant, and that she had never given anyone permission to occupy or had rented to anyone the building to the north for any purpose, and that she had never received anything for its use and had nothing to do with it, and that her son, the defendant,
The evidence fully sustains the conviction unless it be that the case in some respect in point of law was improperly submitted to the jury.
It is hardly necessary to take up the assignments of error ad seriatim.
The trial court refused upon request to charge that the building to the south of the saloon was “ owned and controlled entirely beyond the ownership and control of the defendant; ” that there was not “ any evidence that the defendant had control of the building not owned by his mother, or that he was ever in that building; ” that “ there is not any evidence in this case showing that the defendant had any control over the building to the south of his hotel; ” and further, that “ the defendant’s testimony that he did not have any control over the building [which building the request does not state], was never in it and had no ownership in it, must be taken as true by the jury, it not having been shown that he was ever in the building or did any act concerning its control.” In this latter request is included the desire of the defendant to have the testimony of the defendant in this-respect characterized as “ uncontradicted.”
It is sufficient to say that if the trial court had charged these propositions of fact it would have done violence to the evidence and the probative force and effect thereof; the trial court had no right to pass its opinion as conclusions of fact on these questions. They were questions for the jury under all the proof in the case.
Two other assignments of error have to deal with the admission of the evidence of the witness Tuttle. One is founded upon the objection to the admission of his evidence, and the other is upon the refusal to strike out the whole of it, after it had been given. The only question raised is whether it was admissible at the time it was given. The evidence of this witness describes the different Buildings, inside and outside, the manner in which he gained access to them, and the
Whether the acts are illegal and constitute a disorderly house is a question of law for the court; the question of control or permission as affecting the guilt of the person charged is a question for the jury. The cases are so numerous authorizing proof of the conduct and language of those who resort to a place of this kind, in order to determine its character, that it is not deemed necessary to refer to them. 5 Am. & Eng. Encycl. L. 693, 702. Words in connection with and explanatory of acts are admissible. Hunter v. State, 11 Vroom 495.
There was no error in the admission of this evidence or the refusal to strike it out.
There is another class of assignments of errors based upon refusals upon requests to charge further than the court had already charged. These requests are “that the jury cannot convict unless it be shown that the defendant was in some way connected with or controlled the building charged to be a disorderly house,” and “that the defendant could not be held liable for anything he could not have prevented, and that he could not prevent anything in the building that he did not have charge or control of,” and “that the jury cannot convict the defendant unless he had control of the premises or participated in their management.”
These requests had been fully covered in the charge. The trial court said to the jury that the place or places where these practices were carried on, if they found such practices were carried on, in order to convict the defendant, must be established to be under his control and supervision. The
There does not seem to be any other assignment of error which needs consideration. The law to be applied by the jury to the evidence was favorably stated in behalf of the defendant by the court, and upon an examination none of the exceptions to the charge of the court appear to be sustainable.
The entire record of the proceedings of the trial has been returned into this court by the plaintiff in error with the writ of error, and we have examined it, and applying the principles laid down by the Court of Errors and Appeals in the case of Kohl v. State, 30 Vroom 445, it does not appear from such record that the plaintiff in error, on the trial below, suffered any manifest wrong or injury by the rejection of evidence, or in the charge of the trial court to the jury, or in the denial of any matter by the trial court, which was a matter of discretion, or upon the evidence adduced at the trial.
Judgment of the Hudson Quarter Sessions must be affirmed.