{ "id": 1611972, "name": "Colbert v. State", "name_abbreviation": "Colbert v. State", "decision_date": "1951-04-23", "docket_number": "4652", "first_page": "790", "last_page": "797", "citations": [ { "type": "official", "cite": "218 Ark. 790" }, { "type": "parallel", "cite": "238 S.W.2d 749" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "114 S. W. 920", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1732, "opinion_index": 0 }, { "cite": "88 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517160 ], "year": 1732, "opinion_index": 0, "case_paths": [ "/ark/88/0411-01" ] }, { "cite": "214 Ark. 115", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718692 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/214/0115-01" ] }, { "cite": "223 S. W. 779", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "149 Ark. 616", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722115 ], "opinion_index": 0, "case_paths": [ "/ark/149/0616-01" ] }, { "cite": "239 S. W. 373", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "153 Ark. 40", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362315 ], "opinion_index": 0, "case_paths": [ "/ark/153/0040-01" ] }, { "cite": "205 Ark. 1129", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488212 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/205/1129-01" ] }, { "cite": "139 S. W. 1112", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "100 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312216 ], "opinion_index": 1, "case_paths": [ "/ark/100/0175-01" ] }, { "cite": "155 S. W. 924", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "107 Ark. 374", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1343999 ], "opinion_index": 1, "case_paths": [ "/ark/107/0374-01" ] }, { "cite": "141 S. W. 493", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "101 Ark. 159", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311125 ], "opinion_index": 1, "case_paths": [ "/ark/101/0159-01" ] }, { "cite": "239 S. W. 373", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "153 Ark. 40", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1362315 ], "opinion_index": 1, "case_paths": [ "/ark/153/0040-01" ] } ], "analysis": { "cardinality": 717, "char_count": 13914, "ocr_confidence": 0.484, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.06059117732346558 }, "sha256": "b233a9a9ae55809b8107a59ee273257d34e82ffae5833aca77d891b010c4d348", "simhash": "1:ecf23f6c87a6a096", "word_count": 2394 }, "last_updated": "2023-07-14T15:20:49.049805+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Holt, Ward and Robinson, JJ., dissent.", "Robinson, J., joins in this dissent." ], "parties": [ "Colbert v. State." ], "opinions": [ { "text": "Grieein Smith, Chief Justice.\nAppellant as the defendant below was tried on grand jury charges that he operated a gaming house, \u201cin violation of Title 41-2001, Arkansas Statutes, 1947. \u2019 \u2019 Punishment was fixed by the jury at the minimum permitted by law. It is contended (a) that the gaming house in question was a stretch of woodland traversed by a railway used in hauling logs; (b) it was a mile from human habitation and inaccessible to automobiles; (c) the equipment consisted of several bench-tables made from planks nailed between posts, three of which were used for crapshooting purposes; and, (d) the court erred in not directing acquittal.\nState witnesses fixed the gaming operations at a point near the railroad in West Crossett \u2014 -\u201cabout a mile from Ruth Norman\u2019s place, between Crossett and West Crossett.\u201d There was testimony that crapshooting had been going on there for about two years. There were three tables. The defendant had stated that one was his. He would hold the money \u2014 \u201ckeep it straight.\u201d When this witness patronized the place there would usually be \u201ca bunch\u201d [in attendance] when he got there. Everett Colbert was \u201cthe boss\u201d of operations at his table.\nAnother witness replied affirmatively when asked, \u201cDo you know whether there is a regular crap game played on a regular crap table out by West Crossett [near] the railroad track?\u201d He had never seen anyone running \u201cthat particular game\u201d except the defendant.\nThis witness, after explaining how the planks were nailed to posts, was asked on cross-examination, \u201cDo they have a blanket over them, or anything?\u201d A. \u201cYes, they have some kind of cloth or something over them.\u201d The largest crowd gathered for gaming Saturdays\u2014 \u201cmorning or afternoon, but they don\u2019t gamble on Saturday nights.\u201d The witness then said: \u201cI play a little here (referring, presumptively, to the defendant\u2019s operations), and if I lose there I go to another table. It is a general meeting place \u2014 a place to congregate and gamble. \u2019 \u2019\nThe statute mentioned in the indictment extends to all persons who are interested, directly or indirectly, in keeping, conducting, or operating a gambling house, \u201cor place where gambling is carried on.\u201d While the indictment did not expressly differentiate between \u201ckeeping or conducting a gambling house\u201d and \u201ckeeping or conducting a place where gambling is carried on,\u201d the offense alleged was mentioned as a violation of Ark. Stats., \u00a7 41-2001, and the section contains the interdiction against conducting a place where gambling is engaged in. In charging the jury this statute was read.\nAppellant calls attention to certain expressions in Turner v. State, 153 Ark. 40, 239 S. W. 373, and emphasizes the fact that his place was not equipped with lights and that operations were not carried on at night. The jury, of course, could have inferred that night games were dispensed with because lights would attract public attention. In the Turner case Judge Wood said that the statute was leveled at the specific offense of keeping, conducting, or operating a house or place for the purpose of allowing gambling to be carried on. An instruction told the jury that if it believed Turner was guilty of knowingly permitting a gaming table to be maintained . . . in a certain house \u201cused and controlled by said defendant,\u201d then under the evidence he would be guilty.\nFrom the Turner case, and from statements in Cain v. State, 149 Ark. 616, 223 S. W. 779, and Sorrentino v. State, 214 Ark. 115, 214 S. W. 2d 517, it is argued that conviction cannot be upheld unless the defendant had control and supervision of the premises. Since the locale was part of a railroad right-of-way there could not, in appellant\u2019s view, be control sufficient to justify an application of the statute. In Tully v. State, 88 Ark. 411, 114 S. W. 920, the state was required to show that the defendant was interested in the poker game \u201cas a banker or exhibitor,\u201d and this case is cited in support of the contention that control of the premises was essential. But the statute in that case (Kirby\u2019s Digest, \u00a7 1732) is not the enactment relied upon in this appeal. It appears as Ark. Stats., \u00a7 41-2003.\nIn the instant case the thing prohibited, as has been \u25a0 pointed out, is keeping, conducting, or operating any gambling house, or place where gambling is carried on.\nIt is not unreasonable to believe that the lawmakers, in adding the words [that have been italicized for the purpose of this opinion] contemplated extraordinary circumstances where the thing sought to be prohibited,\u2014 that is, gambling at the invitation of one operating for profit \u2014 might be at a place as distinguished from a house. Here the place had been operated regularly for a longtime. It was known to large numbers, and the location was near enough to Crossett and West Crossett to satisfy the purpose of the operator. Appellant did not own the land, but insofar as his patrons were concerned he controlled it. This was sufficient.\nAffirmed.\nHolt, Ward and Robinson, JJ., dissent.", "type": "majority", "author": "Grieein Smith, Chief Justice." }, { "text": "Holt, J.,\ndissenting. The indictment charged Everett Colbert, Negro appellant, as follows: \u201cThe Grand Jury of Ashley County, in the name and by the authority of the State of Arkansas, accuse Everett Colbert of the crime of Keeping Gambling- House committed as follows, to-wit: The said Everett Colbert in the county and State aforesaid, on the 15th day of July, A. D., 1950, did unlawfully keep, conduct and operate a gambling- house in Violation of Title 41-2001, Ark. Stats. (1947), and against the peace and dignity of the State of Arkansas.\u201d\nMaterial facts appear not in dispute.\nAppellants and a number of other Negroes gathered in a stretch of woods located on the west boundary of the right of way of the log railroad running north and south from the timber holdings of the Crossett Lumber Company. This stretch of woods constituted the \u201cgambling-house,\u201d approximately one mile from human habitation and inaccessible by automobile. There were several tables or benches, consisting of two planks nailed between posts or trees at this particular site, and had been for a number of years. These tables were utilized f or \u201c crap shooting, \u2019 \u2019 or playing dice, for money and one of these tables appears to have been set up and operated by appellant.\nOn these facts appellant was convicted of a felony under \u00a7 41-2001, Ark. Stats. (1947), which provides: \u201c\u00a7 41-2001. Keeping gambling- house \u2014 Penalty.\u2014Every person who shall keep, conduct or operate, or who shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house, or place where gambling is carried on, or who shall set up, keep or exhibit, or cause to be set up, kept or exhibited, or assist in setting up, keeping or exhibiting, any gambling device, or who shall be interested directly, or indirectly in running any gambling house, or in setting up and exhibiting any gambling device or devices, either by furnishing-money, or other articles for the purpose of carrying on any gambling house, shall be deemed guilty of a felony, and on conviction thereof, shall be confined in the State penitentiary for not less than one (1) year nor more than three (3) years. (Acts 1913, No. 152, \u00a7 1, p. 613; C. & M. Dig., \u00a7 2632; Pope\u2019s Dig., \u00a7 3322.)\u201d\nAnother section of the statute, 41-2003, provides: \u201c\u00a7 41-2003. Keeping gaming device \u2014 Penalty.\u2014Every person, who shall set up, keep, or exhibit any gaming-table, or gambling device, commonly called A. B. C., E. 0., roulette, rouge et noir, or any faro bank or any other gaming table or gambling device, or bank of the like or similar kind, or of any other description although not herein named, be the name or denomination what it may, adapted, devised or designed for the purpose of playing-any game of chance, or at which any money or property may be won or lost, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined in any sum, not less than one hundred dollars ($100.00), and may be imprisoned any length of time, not less than thirty (30) days nor more than one (1) year. (Rev. Stat., ch. 44, div. 6, art. 3, \u00a7 1; C. & M. Dig., \u00a7 2630; Pope\u2019s Dig., % 3320.)\u201d\nAppellant earnestly insists that on the record here he was not guilty of a felony and was prosecuted under the wrong section. I think appellant is correct in his contention. As I view it, he was guilty of a misdemeanor under \u00a7 4172003.\nWe must bear in mind that appellant was charged with the crime of \u201ckeeping a gambling house\u201d which is a felony under \u00a7 41-2001.\nJust what did the Legislature have in mind by this statute? What specific phase was it intended to cover? This court has given, I think, a rather clear answer to these questions in Turner v. State, 153 Ark. 40, 239 S. W. 373, where it said: \u201cThis statute is leveled at the specific offense of \u2018keeping, conducting or operating a house or place\u2019 for the purpose of allowing gambling to be carried on therein, or any gambling device or devices to be set up and exhibited therein. The gravamen of the offense is the maintaining of a house or place where those who desire to engage in gambling or to exhibit any gambling device, or devices, may. resort and find shelter, so to speak, while indulging in their gambling practices. The gist of the offense is the keeping of the house or place for the purposes named therein.\u201d\nIt seems obvious to me that our lawmakers never intended that a few crude planks set up out in the open woods upon which dice games are played should come within the purview or meaning of a gambling house as this court has pointed out in the Turner case, above. If the term \u201cgambling house\u201d as used in \u00a7 11-2001, be construed to include every place where gambling is carried on, then why did it not omit \u201cgambling house\u201d and use \u201cthe place where gambling is carried on\u201d only. Section 11-2001 (Act 152, \u00a7 1, p. 613 of 1913) did not repeal the misdemeanor statute above (11-2003).\nIn Johnson v. State, 101 Ark. 159, 141 S. W. 493, a Negro dice game in the woods was held to be a violation of the misdemeanor statute above setting up a gambling device.\nIt is \u201ca settled rule of statutory construction that statutes relating to a subject must be considered as a whole and to get at the meaning of any part thereof we must read it in the light of other provisions relating to the same subject,\u201d Wolf & Bailey v. Phillips, 107 Ark. 374, 155 S. W. 924.\n\u201cThe legislative intent is to be derived from a fair and reasonable construction of the act, having in mind the thing desired to be accomplished or the evil to be remedied, * * *.\u201d State v. Handlin, 100 Ark. 175, 139 S. W. 1112.\n\u201cAll laws are to be given sensible construction, and literal application of statute which would lead to absurd consequences should be avoided whenever reasonable application can be given consistent with legislative purposes.\u201d Merritt v. No Fence District No. 2, Jefferson County, 205 Ark. 1129, 172 S. W. 2d 684.\nI am firmly of the conviction that our Legislature never intended that any man, white or black, should be branded as a felon and confined in the State Penitentiary on a state of facts which this record presents.\nI am unable to join the majority in solemnly declaring that our lawmakers intended that a few planks set up under the trees, and on which the game of \u201cshooting-dice\u201d is played, should constitute a gambling house within the common sense meaning of that term as used in \u00a7 41-2001. Appellant was guilty here of a misdemeanor and nothing more, and the judgment should be reversed.\nRobinson, J., joins in this dissent.", "type": "dissent", "author": "Holt, J.," }, { "text": "Paul Ward, J.,\ndissenting. For two reasons I cannot agree with the majority opinion.\nIn the first place, \u00a7 41-2001 contemplates some kind of a house or building and not the wide open spaces. A different interpretation is reached by the majority apparently because the statute contains the word \u201cplace,\u201d but to get the significance of the use of the word \u201cplace\u201d the entire context must, of course, be read and considered. The first part of the section reads as follows:\n\u201cEvery person who shall keep, conduct or operate, or shall be interested, directly or indirectly, in keeping, conducting or operating any gambling house, or place where gambling is carried on . . . \u201d\nIt seems to me that a fair construction of the English language indicates that the Legislature, by using the phrase \u201cor place where gambling- is carried on,\u201d intended to clarify the thing to be prohibited rather than to clarify the place where it was to be prohibited. If, by the above language, the Legislature meant to clarify the \u201cplace\u201d then it was not only meaningless but also confusing to use the word \u201chouse\u201d in the first instance.\nIn the second place, I think the cause should have been reversed because the State failed to show the defendant had some kind of interest as a banker or exhibitor in the gambling activities. This was held to be necessary in the case of Tully v. State which was cited by the majority. The majority opinion, however, attempts to distinguish the Tully case on the ground it construed \u00a7 41-2003 of the Ark. Statutes whereas this defendant was convicted under \u00a7 41-2001. A casual reading of both sections discloses that neither says anything about the defendant having any \u201cinterest\u201d in the activities. The only evidence set out in the majority opinion approaching the question of \u201cinterest\u201d is the following: \u201cHe (defendant) would hold the money \u2014 \u2018keep it straight.\u2019 Everett Colbert was \u2018the boss\u2019 of operations at the table.\u201d In the Tully case it was admitted the defendant controlled the room and the table and held the money and cashed the \u201cchips.\u201d I can think of no reason why the reasoning applied in the Tully case should not be applied in this case.", "type": "dissent", "author": "Paul Ward, J.," } ], "attorneys": [ "Ovid T. Switzer and W. P. Switzer, for appellant.", "Ike Murry, Attorney General, and Arnold Adams, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Colbert v. State.\n4652\n238 S. W. 2d 749\nOpinion delivered April 23, 1951.\nOvid T. Switzer and W. P. Switzer, for appellant.\nIke Murry, Attorney General, and Arnold Adams, Assistant Attorney General, for appellee." }, "file_name": "0790-01", "first_page_order": 814, "last_page_order": 821 }