41 Iowa 550 | Iowa | 1875
The evidence shows that the defendant kept a place, as charged in the indictment, where persons resorted for the purpose of playing games of billiards, pin pool, etc., and where the defendant. also kept cigars and drinks for sale; that it was the custom or habit of persons resorting to this place to play billiards and pin pool, “ and the losing party to pay for the game; ” the price of pin pool was five cents a cue, and billiards twenty cents a game. Sometimes, too, the man that got beat would treat. The evidence also leaves no doubt of the fact that the defendant knew that games of billiards and pin pool were played in the manner the evidence shows; in other words, that it was usual, in fact universal, for them to play those games with the agreement or understanding that the loser should pay for the games, and that they were in fact so played.
I. The court, among other things, charged the jury that if they found the above enumerated facts they would be authorized to find the defendant guilty under the indictment.
It is urged by counsel for appellant that these facts do not constitute the crime charged in the indictment. • In other words, that playing the game of “ pin pool ” with the agreement that the losing party shall pay for the game, and he does so
This view is sustained by The State v. Leighton, 3 Foster (N. H.), 167, and Ward v. The State of Ohio, 17 Ohio St., 32, both cases being precisely in point. In the former the learned judge delivering the opinion of the court says: “The defendants made a profit from the use of the billiard tables; for the ‘hire’ of them they were paid a shilling a game. The persons who resorted there played for the hire. In substance they played for a shilling a game. The loser paid and the winner received the sum. By an understanding among the players, the money was to be applied towards defraying the expenses of the tables; but still it was money won at play and
In Harbaugh v. The People, etc., 40 Ill., 294, and Blewitt v. The State of Mississippi, 34 Miss., 606, a contrary doctrine is held under the statutes of those states. Under our statute, we deem the former the correct view, and that any different construction would not be warranted.
II. After the jury had been out for some time they came into court and submitted to the court, in writing, the following question:
“ Judge Reed: — Will you state for our information, if, in taking the surrounding circumstances, such as Book’s presence while the games were being played, and receiving the money, we should conclude that he knew how the games • were being played and played unlawfully, should we find him guilty in connection with this evidence.
H. M. Cook,' Foreman.”
Which the court answered as follows:
2 enstbttoníafiaw:111" evidence. “ If you find from the evidence, that parties who played on defendant’s billiard table, in his place of business, did so "with ^ understanding that the loser should pay to defendant the amount ehárged all the members of the party for the use of the table, and that the defendant knew that they were playing under such arrangement, and permitted them so to play, you should find the defendant guilty.”
The objection urged to this instruction is, that it directs the jury as to tbe force or effect of the evidence. We do not so understand it. It simply tells the jury that if “from the evidence ” they find certain faots, then they should find the défendant guilty. There was no error in the instruction in this respect, nor in any other, as we have already seen.
The judgment of the District Court will be
Affirmed.