State v. Williams , 35 Nev. 276 ( 1912 )

Per Curiam:

The deféndant' was indicted by the grand jury of Humboldt County for the crime of knowingly permitting unlawful gambling in his place of business in Winnemucca. From a judgment of conviction and' an order denying a motion for a new trial, he has appealed.

[1] It is urged that the case ought to be reversed on different grounds, first of which is the one that a grand juror was disqualified. His frame of mind is illustrated by the following extract from the testimony which he gave upon the motion to set aside the indictment:

A. Well, I don’t know as I have' any belief. I don’t know that a man could form an opinion unless they had some tangible evidence. It was rumored, and of course I had the impression, that they were gambling, but I had no belief of the gambling until the men were put under oath. You can hear a rumor, but you cannot form an opinion upon a mere rumor. I had heard it stated several times that they were gambling or conducting a gambling place, but I never had heard until I got into the grand jury room that they were gambling — that he was gambling there. When I went into the grand jury room I had no idea that the case was coming up.

Q. Then you had no opinion one way or the other? A. I don’t think I did until after we heard the evidence.

Q. You had no opinion on the 81st of January, before you were sworn as a grand juror, as to whether this man had been gambling or was running a gambling place? A. I didn’t have an opinion that I could come in and make any charge against him; I didn’t have an opinion that I could have charged him with anything.

Q. I think I understand what you mean, but you will be fair with me, I know. Still you did have an opinion or belief about it — about this man — didn’t you? A. Why, sure, I have had for some time, that there was something wrong there.

Q. And that' belief or opinion, if it was such, was formed upon what you had heard? A. Yes, on rumors.

Q. And the persons who had informed you, you had no reason to disbelieve, did you? A. I couldn’t recall any one, outside of that one evening, who spoke positively on the case. He didn’t say that he had seen anything; he simply said it was an open secret. .

Q. After that you considered it was an open secret, didn’t you? A. I didn’t pay any attention to it, Judge.

Q. You took it for what it was worth, and believed it, and let it go at that? A. I just took it for what it was worth and let it go. I would not want to injure Mr. Williams by saying that I had an opinion, or denying an opinion if I had one. I don’t believe — I couldn’t say that I had an opinion. I had the impression that there was gambling going on there, but I didn’t trace it, and didn’t try to trace it. Likely there is very few men in the county that has not heard the same thing.

There is nothing in this or the other evidence to indicate that he had a fixed or settled opinion regarding the guilt or innocence of the defendant, and such a prejudice or state of mind as tended to disqualify him as a grand or trial juror.

The sixth subdivision of section 7005 of the Revised Laws provides that an individual juror may be challenged on the ground: "That a state of mind exists on his part in reference to the case,, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging; but no person shall be disqualified as a grand juror by reason of having formed or having expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety; provided, it satisfactorily appears to the court upon his declaration, under oath, or otherwise, that he will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him.”

The fact that a man hears rumors or statements and forms impressions from them, as every intelligent person may be expected to do, is far from sufficient to disqualify under this statutory provision and our practice.

[2] It is also contended that the conviction cannot be sustained upon the uncorroborated evidence of witnesses who were allowed to play the unlawful game while the defendant was not one of the players. Section 7180 of the code provides that a conviction shall not be had on the testimony of an accomplice unless he is corroborated by other evidence which, in itself, tends to connect the defendant with the commission of the offense. On behalf of the state are cited cases tending to sustain the claim that the persons who actually play the game are not accomplices of the owner of the premises or the proprietor who permits the game to be played, and that a conviction can be sustained against him on the testimony of the player. As to whether, under that section, the witnesses who might be guilty of playing an unlawful game are accomplices of the proprietor who is guilty of the offense of allowing an unlawful game to be played on his premises, which may be considered a different crime, need not be determined, for we think there is sufficient corroborative evidence in the testimony of Lamb and Miller, witnesses who did not participate in the game.

The fact that other unlawful games, and that this game, as testified to by the participants and other witnesses, were carried on with the door locked and attended by the defendant’s brother, although slight, may be sufficient to corroborate the evidence of an accomplice. The corroborating evidence here seems to be as strong as in the case of State v. Streeter, 20 Nev. 403, in which this court said that all the statute requires is that the circumstances should be such as to convince the jury and to make them believe that the accomplice had sworn truly, and that the charge was true, and, if the jury are satisfied with the weight of the corroborating circumstances, it is enough. (State v. Lambert, 9 Nev. 321.) This view also makes it unnecessary to determine regarding the objection to the instructions relating to accomplices. Evidence that the defendant permitted other unlawful games to be played on the premises was properly admitted to show his knowledge of, and consent to, the playing of this particular game. (State v. McMahon, 17 Nev. 375; State v. Roberts, 28 Nev. 375.)

[3] The district attorney, in his opening address to the jury, stated: "Why didn’t the defendant call any witnesses to the stand? Why didn’t he put his brother on the stand, his attendant? Why didn’t he make a defense by calling witnesses to the stand, his brother, the attendant? I will tell you why; he didn’t dare to do it.” Counsel for the defendant, interrupting, said: "We desire at this time, so that the reporter may get it in the record, to state that the district attorney has commented on the failure of the defendant to take the stand in his own behalf, or to produce any witnesses on behalf of the defense, and we assign it as prejudicial error on his part, and ask the court to instruct the jury to disregard his remarks.” The district attorney said: "I wish to deny that I made any allegation of that kind as to the defendant’s failure to take the stand.”

The state and federal constitutions provide that persons accused of crime shall not be compelled to testify against themselves, and the statute (section 7161) directs that "in all cases wherein the defendant in a criminal action declines to testify, the court shall specially instruct the jury that no inference of guilt is to be drawn against him for that cause. ”

It has been held error for a prosecuting attorney to argue to the jury that the defendant is guilty because he failed to testify. In this case the district attorney did not criticize or mention the failure of the defendant himself to testify, but his remarks appear to relate to his failure to put on the stand his brother, who apparently was in charge of the room where the game was played, or other witnesses. We think, under the circumstances, the language of the district attorney was not improper argument. Nor ordinarily are remarks of a prosecuting officer, provoked by or made in reply to statements of the attorney for the defendant, objectionable.

We conclude that the evidence is sufficient to sustain the conviction of the crime of' knowingly permitting unlawful gambling. As some of the points involved were in doubt until given consideration, and there was an honest difference of opinion regarding them entertained by opposing counsel, we issued a writ of probable cause and stayed the execution, under' section 7294, pending the determination of this appeal.

The judgment and order of the district court are affirmed.