State v. Sylvester

MR. JUSTICE SMITH

delivered the opinion of the court.

The information in this case is substantially the same as that set forth in the case of State v. Rose, ante, p. 66, 105 Pac. 82, with the exception that the offense is alleged to have been •committed on April 12, 1909.

The testimony shows: That one portion of the M. & M. saloon was in fact a poolroom; that Sylvester, on the day in question, stood before the blackboard described in the Bose Ease, recording thé result of the races; that he was writing the names of the horses, the odds, and weights on the blackboard, .and “calling the races” when the information came in; that he was “putting up the result” of the races; that he was putting information upon the board; that “Mr. Colby and others would go into that place of business and take a look at the board and decide what horses they wanted to bet on, * # * .and from the information posted on that board the bets were made upstairs by means of this telegraph company”; that.Chas. Colby made a $50 wager on the horse “Intrinsic” by means of a subterfuge similar to that employed in the Bose Case, with the exception that the person Wright was addressed at the Langham Hotel, Spokane, Wash., instead of Coeur d’Alene City, Jdaho. The name of the horse “Intrinsic” was on the blackboard downstairs, as entered in the second race at Los Angeles. Under these circumstances the defendant should have been, as he was, convicted, and his motion for a new trial was properly-overruled. There can be no question that he was engaged in “ aiding and abetting in reporting, recording and registering a bet or wager upon the result of a contest of speed of horses, held without the state of Montana,” by communicating information for the purpose of having the wager made.

The trial court allowed witnesses to testify as to all the surrounding facts, circumstances, and physical conditions at the time the defendant was engaged at the blackboard, as aforesaid. This was proper. (See State v. Rose, ante, p. 66, 105 Pac. 82.) The court also, over objection of the defendant, received testimony as to what Rose said and did at the time Colby sent his telegram, and what others said and did in and about the operation of the poolroom, both before and after April 12, to-wit, from April 7 to April 14. This was also proper. What Rose said tended to prove that a wager was made on April 12 on a contest of speed held outside of the state. The entire record discloses the fact that the M. & M. saloon, together with the office of the Interstate Telegraph Company, constituted a poolroom. Both Sylvester and Rose, with others, were engaged in carrying out a subtle plan to evade the law; in other words, in a conspiracy. The evidence showed that Sylvester was a party to the entire plan of procedure. His work was one of the links1 in the chain of operations, and a part of the main transaction. (See State v. Hayes, 38 Mont. 219, 99 Pac. 434.)

It is contended that portions of the testimony to which objection was made tended to prove other and different offenses. What was said by this court in the case of State v. Newman, 34 Mont. 434, 87 Pac. 462, disposes of this contention.

We do not find it necessary or at all desirable to review the entire testimony. The conclusions of fact which we have reached are amply justified thereby. The state introduced a great mass of evidence, some of which, perhaps, was unnecessary, and portions thereof related to acts which were somewhat remote in point of time; but a careful examination of tbe record satisfies us tbat no prejudicial error was committed. All of tbe testimony tended to prove tbat no substantial change took place in tbe method of operating tbe M. & M. poolroom after tbe so-called “anti-poolroom law” took effect. A subterfuge was resorted to in an attempt to evade tbe law; but in tbe essentials the business was conducted as theretofore. Tbe defense interposed was manifestly a pure sham. The defendant was palpably guilty. All other questions discussed in tbe brief of bis counsel are disposed of in Bose’s Case.

Rehearing denied January 7, 1910.

Tbe judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.