Meyers v. Dillon, 65 P. 867

Meyers v. Dillon

65 P. 867 | Or. | 1901

Lead Opinion

Mr. Chiee Justice Bean

delivered the opinion.

This action was brought, under Section 3528, Hill’s Ann. Laws, against Charles Mellquist and John Dillon, to recover double the amount of $260, alleged to have been lost by plaintiff at a game of vingt-un, or twenty-one, carried on at the time by the defendants as proprietors. The jury found “for the plaintiff and against the defendant John Dillon in the sum of $200, as the actual amount lost.” From a judgment for $400 rendered on such verdict, Dillon appeals.

1. The plaintiff was permitted to give evidence that' Dillon was commonly reputed to be the proprietor of the gambling, game at which plaintiff lost his money, and that a short time prior thereto he had been convicted in the recorder’s court, upon his plea of guilty, of so conducting the game. Defendant insists that this evidence was improperly admitted. It is a disputable presumption that “a person is the owner of property from exercising acts of ownership over it or from common reputation of his ownership”: Hill’s Ann. Laws, § 776, subd. 12; and it is believed that the evidence of common reputation was competent under this provision. By the section quoted,'common reputation is placed on an equal footing with possession, as furnishing a presumption of ownership : Wilson v. Maddock, 5 Or. 480 ; Bartel v. Lope, 6 Or. 321; Raymond v. Flavel, 27 Or. 219 (40 Pac. 158). And it is clear that proof of possession and control of a gambling game would be competent, as tending to prove proprietorship or ownership.

2. A judgment of conviction, in a criminal action, after trial, is not admissible in evidence in a civil action *584to establish the facts upon which it was rendered : 1 Greenleaf, Ev. (15 ed.) § 537; Doyle v. Gore, 15 Mont. 212 (38 Pac. 939); but where the judgment is founded upon a plea of guilty the record is competent as evidence of an admission by the defendant of a disputed fact in the civil action, although not conclusive : 2 Black, Judgm. § 529 ; Freeman, Judgm. (4 ed.) § 319 ; Green v. Bedell, 48 N. H. 546.

Messrs. J. W. Knowles and Samuel White presented an argument for appellant. Mr. L. A. Esteb presented a brief for respondent.

3. It is insisted that the court erred in instructing the . jury that their verdict, if in plaintiff’s favor, should state only the amount actually lost, and in rendering judgment for double the amount so found. The statute gives a right to a person losing money at or on certain enumerated gambling games to recover double the amount actually lost, and a verdict of the jury showing the amount of the loss and defendant’s liability is in the nature of a special finding, and authorizes the court to render judgment accordingly : Loewenherg v. Rosenthal, 18 Or. 178 (22 Pac. 601); Humes v. Proctor, 151 N. Y. 520 (45 N. E. 948); Macey v. Carter, 76 Mo. App. 490.

There are several other assignments of error in the record, but it suffices to say that, after a careful examination thereof, we are of the opinion that they are without substantial merit.- The judgment is therefore affirmed. Affirmed .

Rehearing

Decided 9 December, 1901.

On Rehearing.

Mr. Chief Justice Bean

delivered the opinion.

A contention is made that the record of the recorder’s *585court was incompetent because it stated that the defendant was convicted of gambling. The complaint charged him with conducting as owner a gambling game for money, and to this charge he entered a plea of guilty. The record of the plea, therefore, was competent evidence of an admission by him of a disputed fact in the present action, and its competency is not affected by an erroneous statement in entering the judgment.

Again, it is insisted that .the court erred in stating to the jury the general provisions of the act of 1878 defining unlawful gaming, and the penalties for a violation thereof. The section of the statute under which the present action was instituted (Hill’s Ann. Laws, § 3528) is a part of the act referred to, and is intelligible only by reference to the other provisions. It particularly refers to the unlawful gaming defined and punished by other sections, and is, in effect, one of the penalties for the violation of the act. It creates a cause of action in favor of the loser of money at certain gambling games against the dealer or player winning the same, or the proprietor of such game, to recover double the amount lost. One of the issues in the case was whether defendant had violated the statute by conducting as owner or proprietor one of the prohibited games, and no recovery could be had unless the jury found that fact against him. It was therefore quite proper for the court to explain, as it did in a general way, the several provisions of the act, to give the jury, as it stated at the time, “a view of the law of these sections.”

The former judgment will be adhered to.

Aeeirmed on Rehearing.