149 Ark. 616 | Ark. | 1921
Timothy Cain was indicted for conducting and operating, and being interested in conducting and operating, a gaming house in the city of Hot Springs, Arkansas. The defendant was indicted under the provisions of section 2632 of. Crawford & Moses ’ Digest, and pros-ecntes this appeal to reverse a judgment of conviction against Mm after a trial before a jury.
It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to sustain a conviction.
The evidence on the part of the State tended to show that a gaming house was operated at No. 422 Malvern Avenue in the city of Hot Springs in Garland County, Arkansas. The evidence tended to show that a crap game was run in the basement of the building, and that • forty or fifty people were found to be engaged in the game when a raid was made. There were buzzers in the basement, placed there for the purpose of warning the players that a raid was about to be made. The evidence tended to show that the place was run as a common gaming house.
The evidence on the part of the defendant tended to show that the place in question was known as the Pastime Pool Hall, and that it was operated by a man named Page, and that the defendant had nothing nothing whatever to do with its operation.
It is the contention of counsel for the defendant that the evidence on the part of the State is not sufficient to show that the defendant was interested in operating and conducting the gaming house.
We can not agree with counsel in this contention. One witness testified that the defendant was frequently seen in the building where the gaming* house was operated, and that, when any squabble or unusual noise occurred in the basement where the gaming was carried on, the defendant would come back to see about it. Another witness testified that on one occasion complaint was made to the defendant that the man who was conducting the game was doing so in a crooked manner and the defendant discharged the employee complained of. Another witness testified that- the defendant ran a gaming house at No. 424, Malvern Avenue, in which he had installed new gaming devices, and that he had moved his old gaming devices from a place in Hot Springs known as the Eollins place to the Pastime place located at 422, Malvern Avenue.
It is fairly inferable from this testimony that the defendant was interested in the Pastime place, and that it was being conducted as a gaming house. The evidence for the State, if believed by the jury, was legally sufficient to show that the Pastime place was operated as a gaming house within three years before the finding of the indictment, and that the defendant was interested in conducting the gaming house.
It is next insisted that the judgment should be reversed because, under one of the instructions given for the State, the jury might have found the defendant guilty of operating a gaming house at any place in Hot Springs, wjiile the State had elected to prosecute the defendant for conducting a gaming house at the Pastime place, or being interested therein.
The instruction in question, together with other instructions, had been given by the court before the State elected to prosecute the defendant for operating a gaming house at the Pastime place at No. 422, Malvern Avenue. After the State had made its election, the court specifically told the jury that it could not convict the defendant for. conducting a gaming house.other than the one at the Pastime place on which the State had elected to rely, and that proof of similar offenses about the same time at other places in the city of Hot Springs could only be considered as evidence in determining whether .or not the defendant was guilty of operating a gaming house at the Pastime place. Thus the jury was told that it could not consider evidence of running a gaming house at other places without restriction; but that such evidence could only be considered for the purpose for which it was admitted.
The instruction, as a whole, properly guarded the rights of the defendant, and, if the defendant thought that the instruction complained of was misleading, he should have specifically objected to it on tbe ground that it was necessary to find that tbe defendant was interested in running a gaming bouse at tbe Pastime place in order to convict bim; for tbe jury must be credited with having common sense, and, wben tbe instructions are read as a whole, it is perfectly plain that tbe jury was restricted to tbe Pastime place, and that evidence of running a gaming bouse at other places was only admitted for tbe purpose of showing that tbe defendant was guilty of being interested in operating a gaming bouse at tbe Pastime place.
It is next insisted that tbe court erred in refusing to give instruction No. 3 asked by tbe defendant. This instruction told tbe jury, in effect, that unless tbe State bad proved, beyond a reasonable doubt, that tbe defendant bad some interest, in the Pastime place, and that gaming was carried on therein with bis consent and knowledge, it should not convict bim. Tbe matters embraced in tbe refused instruction were fully covered by tbe instructions given by tbe court. Tbe jury was specifically told that, in order to convict, it was necessary to find that be operated tbe gaming bouse in question and bad direction and supervision over it. Tbe court was not required to multiply instructions on tbe same point.
It is next insisted that tbe court erred in admitting evidence tending to show that the defendant operated 'gaming bouses at other places in Hot Springs than tbe Pastime place. There was no error in admitting this testimony to go to tbe jury. It is true tbe general rule is that evidence of tbe commission of other crimes is admissible only wben such evidence tends directly or indirectly to establish the defendant’s guilt of tbe crime charged in tbe indictment or some essential ingredient thereof. Tbe evidence of tbe commission of other crimes of a similar nature about tbe same time, however, tends to show tbe guilt of tbe defendant of tbe crime charged wben it discloses a criminal intent, guilty knowledge, identifies tbe defendant, or is part of common scheme or plan • embracing two or more crimes so related to each other that the proof of one tends to establish the other. Larkin v. State, 131 Ark. 445.
Here the evidence shows that the defendant on one occasion discharged an employee who was operating a crooked game in the basement of the Pastime place and evidence that the defendant was interested in running gaming houses at other places in the city of Hot Springs about this time tended to show that he was operating a gaming house in the Pastime place and was not merely running a game on some particular occasion. Such evidence also tended to show that he had knowledge that a gaming house was being operated in the basement of the Pastime place, which other evidence tends to show that he was interested in and operating.
We find no prejudicial errors in the record, and the judgment will be affirmed.