State v. Teubner , 58 Mont. 482 ( 1920 )

MR. JUSTICE HURLY

delivered the opinion of the court.

Defendant, convicted of gambling, has appealed. The principal grounds urged by appellant have to do with the sufficiency of the evidence and the reception of hearsay testimony. Other errors assigned have been considered by us, though not discussed herein.

Arthur Higgins, undersheriff, was permitted to testify to a [1] conversation had with one Dumphy, charged jointly with defendant but not on trial with him, concerning Teubner’s opening a gambling-room, without the introduction of any testimony tending to show a conspiracy between Dumphy and defendant. The testimony should have been excluded. However, the error was cured by Dumphy, called as a witness, who, in answer to a question upon cross-examination, testified that defendant had told him that he intended opening a gambling-room.

The testimony shows that defendant and twelve others were [2] present in the room with the doors locked, the blinds drawn, and a card game (designated by one of the witnesses as studhorse poker) in progress; that a sale was .made by defendant to one of the witnesses of chips of the value of $10 for use in the game; that the defendant was participating therein; that an attempt was made by the persons present, including defendant, to escape from the room when the officers entered; and that there was an absence of furniture, except tables and chairs, and the presence of a large number of chips and packs of cards in the room.

The trial court which denied the motion for a new trial heard and saw the witnesses testify and was in a better position than we to determine the weight of the testimony and the credibility of the witnesses. We will not disturb its ruling.

The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Holloway, Matthews and Cooper concur.