75 W. Va. 299 | W. Va. | 1914
Defendant was tried and convicted in the criminal court of Harrison county on an indictment charging him with keeping a “common gaming house,” and adjudged to-pay a fine
One assignment of error is, that the trial court improperly overruled his motion for a continuance. The record shows that the continuance was refused because the case had been continued at a former day of the term, on motion of defendant, when it was called for trial. The court then set it for. trial at another day of the term, and informed defendant that it would be tried on the day set. It also appears that defendant did not have summons issued for his witness Bell on account of whose absence the continuance was asked, until the afternoon of the previous day. The refusal to continue ■ was clearly no abuse of judicial discretion. Defendant had not shown proper diligence to have his witness summoned in time. State v. Brown, 62 W. Va. 546, and Cicerello v. Railway Co., 65 W. Va. 439. The matter of continuances is within the sound discretion of the trial court, subject however to review for abuse thereof. State v. Harrison, 36 W. Va. 729; State v. Roberts, 50 W. Va. 422; and Boyd v. Beebe, 64 W. Va. 216.
Exception was taken to the ruling of the court in permitting certain questions to be asked of, and answers made thereto, by David L. Morris a witness for the state. Without encumbering the reports with a quotation of these questions and answers, which cover about a page of the printed record, it is sufficient to say that they were for the purpose of proving that defendant was compensated for the use of his room by getting a portion of the stakes, commonly called a “rake-off”. It was not necessary to prove that fact in order to convict him of the crime alleged. State v. Balter and Rader, 69 W. Va. 263. Therefore, the evidence was wholly immaterial. But its admission does not call for reversal, for we can clearly see that defendant was not prejudiced by it. State v. Yates, 21 W. Va. 761.
Complaint is made of the following instruction which the court gave at the state’s request: “The Court instructs the jury that if you believe from the evidence in this case that a
No particular objection to the instruction is pointed out, and we find no fault with it. Defendant was the proprietor of the place, and he admits that he and his bartenders had' charge of it. He was, therefore, chargeable with knowledge of the purpose for which it was being used, and if it was in fact used as a common gaming place he was guilty. If he was interested in the games and the profits thereof, that would be positive proof that he was maintaining a gambling place, for he admits his proprietorship. So that, if the jury were warranted in believing that gambling was being carried on in the room, they were bound to find defendant guilty if they found that he was the proprietor, and this he admitted, or that he got a part of the profits of the game, or that he was both proprietor and interested in the profits of the game.
Complaint is also made of the court’s refusal to give the following instruction asked by defendant and in modifying it and giving it in the modified form, to-wit: “The Court instructs the jury that in order to convict the defendant of the offense charged in the indictment the State must show that gaming was carried on at the place charged in the indictment to such an extent to constitute a nuisance, and that the defendant was the proprietor of the game or interested therein, or in the profits thereof, and that a nuisance cannot be established by merely showing that there was gaming conducted at a particular place at one time or on one occasion; but it must be shown that gaming was carried on to such an extent as to constitute a nuisance, or tend to corrupt the youths or other persons who frequent the place, (that is that gaming was carried on to such an extent as to be against good morals and tend to corrupt the youths or other persons who frequent the place, or to such an extent as to' injure or annoy the adjoining residents or property owners).” The modification consisted in inserting the italicized words, and
The motion to set aside the verdict was properly overruled. We have read the record carefully and find in it sufficient evidence to sustain the verdict. The gambling was carried on in a largo room directly over defendant’s saloon. Access to it was either by way of the saloon or a room by the side of it used as a restaurant. The room had no bed in it, but had several tables, chairs and a desk. It was kept lighted all night. Several witneses say they gambled there and saw others do the same thing, both day and night. Cards, dice and chips to represent money were used. The chips were received at the saloon as money. They were kept locked in the desk in the upper room, and Mr. J. S. McCloud, defendant’s bartender, kept the key to the desk. Defendant says that Mr. McCloud stayed in the room “practically the last year, ’ ’ and that he gave him permission to use the desk and charged him no rent either for the room or desk, and that he (defendant) went up in the room nearly every day. We
The judgment is affirmed.
Affirmed.