117 P. 95 | Mont. | 1911
delivered the opinion of the court.
The defendant was charged, by information filed in the district court of Eavalli county, as follows: ‘ ‘ That he did unlawfully and willfully carry on, open, and cause to be opened, conduct, and cause to be conducted, operate, and run a game of studhorse poker; the same being a game of chance played with cards, for money, checks, and representatives of value. ’ ’ He was
The first contention of the appellant is that the information does not state facts sufficient to constitute a public offense in that
2. It is contended that the court erred in unduly restricting the cross-examination of two of the state’s witnesses. The record shows that these two witnesses were what is commonly known as detectives. Their names were Dillon and Lewellen. They both testified that on the night of August 19, 1910, they played a game of studhorse poker in the defendant’s saloon at Hamilton; that the defendant and his barkeeper, Carr, both played in the game; that the defendant personally “banked” the game, sold chips representing money values, and took a “rakeoff.”' The defendant and Carr testified that no such game, or any game, was played in the saloon on the night in question, or at any other time. The following proceedings will illustrate the point sought to be made by the appellant in this assignment of error. Dillon testified on cross-examination: “I am a detective in the employ of the Swain Detective Agency. I have been in the employ of that agency for about two years. Q. Were you working for a salary or commission? (An objection to the question as
Lewellen testified on cross-examination: “I never had any subpoena served on me. I came here at the solicitation of the county attorney. I was brought over here by the county attorney in August to look up the gamblers. I was paid by the county. I drew the money from Mr. McCulloch. I have known Mr. Dillon a little over a year. I made his acquaintance in Spokane. He was a detective. I and Dillon came here together. I and Dillon together drew our money from the county, or from
The defendant was not prejudiced by the refusal of the court to allow the witness Dillon to answer whether he was working
There was no error in sustaining an objection to the question, “Do you mean to say that from the time you were a kid until you entered the employ of the detective agency you didn’t play studhorse poker?” The witness had made no such statement.
There was no prejudicial error in refusing to allow him to state what sign he employed to convey the information to Lewellen that the cards were marked. This and similar questions were
It was material to inquire what interest, if any, these witnesses had in the result of the prosecution, and to that end it was proper
We recognize the duty of trial judges to allow the utmost latitude in cross-examination, especially in eases like this, where the
3. In support of his motion for a new trial, the defendant produced the affidavits of four jurors who sat in the case, to the
4. It is contended that the witnesses Dillon and Lewellen were accomplices of the defendant, and, their testimony being uncorroborated, the conviction cannot stand. (See Rev. Codes, sec. 9290.) The case of State v. Light, 17 Or. 358, 21 Pac. 132, was cited to the point. In that ease, however, it was apparently held that under the Oregon statute all who participated in a game of studhorse poker were particeps criminis, and therefore accomplices. But under our statute the mere player who does not
5. The record shows that while the witness Dillon was upon the stand he made this statement: “About 8 o’clock in the evening, the bartender told myself and Lewellen to stick around; there would be a little game of poker that evening.” Defendant’s counsel moved “to strike from the record as hearsay what the bartender told this witness and Lewellen.” “Q. Was Mr. Wakely present when that was told you? A. He was. Q. Did he hear it? A. I do not know. Q. Was he close enough to hear it? A. He was close enough to hear it.” The court overruled the motion. Witness continuing on cross-examination: “Mr. Carr talked with me and Lewellen about the game. Mr. Wakely was in thé house at the time. I think he was near the cigar-case when we talked it over, 4 or 5 o ’clock in the afternoon. I was at the bar, at one particular time Wakely was at the cigar-case. There is a screen that separates the bar from the cigar-case. I was not talking loud enough so that people around there could tell what I said; I am not sure that Wakely heard what I said.” Defendant’s counsel: “Want to have this evidence stricken from the record, because he testified in his direct examination Mr. Wakely was close enough at all times so he could hear everything that was said.” This motion was overruled, and the witness continued: “I was not talking loud enough so Mr. Wakely could hear me in by the cigar-case.” Defendant’s counsel: “Ask to have the testimony stricken from the record, all evidence with reference to ribbing up any game.” Court: “It was brought out on cross-examination. The county attorney didn’t bring it out. (Motion overruled.) ”
It is difficult to determine whether the conversation referred to by the witness on cross-examination was the same as that mentioned by him on direct examination. If it was not, the court
6. We find no error in the action of the court in allowing the
7. One ground of the motion for a new trial was that appellant had discovered material evidence which he could not, with reasonable diligence, have discovered and produced at the trial. Two affidavits were filed in support of this feature of the motion. It appears that Lewellen had sworn at the trial that during the progress of the game one “Ole” had served drinks to the players.' The affidavit of one Earl Peck declared that he was the person known as “Ole,” that he had not been present on the night in question, and that the testimony of Lewellen to the effect that he was present and served drinks was “wholly false and untrue.” It will be readily seen that this testimony would have been very material and beneficial to the defendant
The judgment and order are affirmed.
Affirmed.