Chapin v. Haley , 133 Mass. 127 ( 1882 )

Field, J.

The exceptions of the defendant to the order of the Superior Court striking from the record the second, fourth and sixth charges cannot be sustained. The granting of such an order was within the discretion of that court, and is not subject to exception.

The defendant complains, in his argument here, that the evidence admitted under these charges may have improperly influenced the jury in rendering their verdict on the other charges. But it was the right of the defendant to ask the justice presiding at the trial to rule distinctly upon the admissibility of evidence under each charge, and to take exception if any erroneous ruling was made. Having neglected to do this, there is no exception before this court, except the general exception to the granting vof the order.

The jury returned a verdict of guilty on the first, second, fourth, fifth and sixth charges; but as the second, fourth and sixth charges have been, stricken from the record, there remains only a verdict of guilty on the first and fifth charges.

The defendant moved to dismiss these and other charges, for the alleged reason that they did not aver that the defendant had hazarded and paid money in some kind of gaming prohibited by the laws of the Commonwealth. The first charge alleges that the defendant “ hazarded and paid the sum of one hundred and twenty-five dollars in a certain unlawful game played with cards, and called draw poker or bluff,” “ and that the said Haley did hazard and pay the said sum of one hundred and twenty-five dollars in said gaming as aforesaid, which is prohibited by the laws of this Commonwealth.” The fifth charge alleges, in the same manner, the hazarding and paying the sum of thirty dollars. The reason given for dismissing these charges is not supported by an examination of the charges themselves, and the motion was rightly overruled.

The refusal of the presiding justice to rule that the debt was contracted on July 19, 1876, as requested by the defendant, and the ruling that the debt was contracted when the $1150 was borrowed, have become immaterial, since either date is before the gaming proved under the first and fifth charges.

The defendant asked the presiding justice to rule that, on the evidence recited in the exceptions, the defendant could not be found guilty; which request was refused. It is contended that this ruling was erroneous, because the games described by the plaintiff’s witnesses are not gaming prohibited by the laws of the Commonwealth. No error appears in the instructions to the jury upon what constitutes gaming prohibited by the laws of the Commonwealth, and the evidence was sufficient to warrant the jury in finding a verdict of guilty on the first and fifth charges. Gen. Sts. c. 85. Babcock v. Thompson, 3 Pick. 446. White v. Buss, 3 Cush. 448. Commonwealth v. Taylor, 14 Gray, 26. Commonwealth v. Grourdier, 14 Gray, 390.

Exceptions overruled.