1 Wyo. 78 | Wyo. | 1872
By the Court,
The defendant was indicted at the November term, 1871, of the district court, first judicial
At the same term of the district court, the defendant was arraigned on said indictment and plead not guilty, and trial was had by jury, and a verdict of guilty rendered. Before judgment, the defendant, by his counsel, made a motion to set aside the verdict of the jury, and that the court grant a new trial. The motion, after argument, was overruled by the court. The reasons assigned in the motion for a new trial, are virtually the same as those set forth in the petition in error, which are as follows, to wit:
1. That the district court erred in admitting certain testimony offered by the prosecution and objected to by the defendant.
2. That the'district court erred in its instructions to the ' jury, and in refusing to give certain instructions requested on the part-of the defendant.
3. That the district court erred in overruling the motion of the defendant to set aside the verdict of the jury and grant a new trial.
The section of the statute under which the indictment was found, provides that certain games may be licensed; but the game of poker is not included among these, and consequently the .game of poker, as alleged in the indictment, falls under that clause of the section which provides that “any person or persons who shall keep or deal, or permit to be kept or dealt in any building or place under 'his or
In the trial in the district court, the first witness called on the part of the prosecution, E. W. Keplinger, testified that about the seventh or eighth of January, 1872, at the place of the defendant, he saw a game of chance, called poker, played with cards for checks and money. ■ The next witness called, P. B. Danielson; was asked the following question by the prosecution, viz: ‘ ‘ State whether or not you ever saw any game of poker played in the building kept by or under the control of the defendant within two years next prior to the twenty-seventh day of January, 1872 ?” This question was also asked J. A. Jefferson, a witness on the part of the prosecution. In each instance the question was objected to by the defendant on the ground that the evidence in the case must be confined to the particular game concerning which evidence had already been given to the jury, and to the same time as that mentioned by witness Keplinger. The court overruled the objections and permitted the questions to be asked and answered. ' It is upon the rulings of the court upon these questions that the first error assigned is based.
It is immaterial what date is alleged as the day on which a crime was committed in an indictment, provided such day be prior to the finding of the indictment and within the time prescribed by the statute of limitations; but the rule as to proof under an indictment is not so liberal, as it must be confined to a given crime and to a given time.
This disposition of the first error assigned, disposes also of the second and third, as the latter two grew out of the first.
Judgment of district court reversed, and new trial ordered.