{ "id": 8623766, "name": "STATE v. WILLIE F. WEBSTER", "name_abbreviation": "State v. Webster", "decision_date": "1940-12-20", "docket_number": "", "first_page": "692", "last_page": "697", "citations": [ { "type": "official", "cite": "218 N.C. 692" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "133 N. C., 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659539 ], "pin_cites": [ { "page": "745" } ], "opinion_index": 0, "case_paths": [ "/nc/133/0743-01" ] }, { "cite": "74 S. E., 354", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "158 N. C., 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655263 ], "opinion_index": 0, "case_paths": [ "/nc/158/0317-01" ] } ], "analysis": { "cardinality": 632, "char_count": 12951, "ocr_confidence": 0.464, "pagerank": { "raw": 1.7740623462479564e-07, "percentile": 0.712515478701654 }, "sha256": "a1059e121d09124bda9502a6c910c7fb8fc68984cd518fece9b61a7906817fb2", "simhash": "1:2117d36ac57e56f8", "word_count": 2270 }, "last_updated": "2023-07-14T19:22:12.547739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. WILLIE F. WEBSTER." ], "opinions": [ { "text": "Seawell, J.\nEeference to the second warrant shows that probably two offenses are charged \u2014 operating a gambling or gaming house and the unlawful possession of gambling devices. A perusal of the judge\u2019s \u25a0charge shows that he elected to present to, the jury, in this warrant, only the charge of keeping a gambling house, treating the references to sections 4434 and 4433 as surplusage, or as explanatory of the charge. 'The defendant took no exception to this treatment of the warrants.\nThere was plenary evidence to go to the jury as to both offenses submitted for their consideration, and the motions for judgment of nonsuit were properly overruled.\nThe defendant here relies mainly on exceptions to the instructions to the jury, which we now consider.\nIt is contended the judge trespassed on the statute \u2014 C. S., 564 \u2014 in expressing an opinion on the evidence in the following bracketed clause of his charge: \u201c. . . as to whether you find him guilty of having these gambling devices in his possession.\u201d But the context shows that the judge was referring to the warrants, or charges, and the reference was purely abstract \u2014 to the devices mentioned in the warrant, rather than those about which testimony had been taken. He had not yet referred to the evidence. The point is too narrow to support a contention of prejudicial error.\nFor the same reason \u2014 that it is an expression of opinion on the evidence \u2014 objection is made to the following :\n\u201cThe defendant contends that he is charged under the wrong statute, (c) Now, as to that, gentlemen, I charge you as a matter of law that a punehboard under the statute and a tip board would be the same thing under that statute, and I charge you that if you find that this defendant is guilty, are satisfied beyond a reasonable doubt that he had these tip boards in his possession, and that they are gambling devices, I charge you he would be guilty under that statute as a matter of law. (d)\u201d Obviously the intention was to instruct the jury that under the evidence a tip board would be as much within the statute as a punehboard, as a gambling device. This is clarified by the latter part of the quotation : \u201c. . . if you . . . are satisfied beyond a reasonable doubt that he had these tip boards in his possession, and they are gambling devices.\u201d It is the province of the jury to pass on and determine the facts, but when they are determined, whether they describe or define something within the statute, is a matter of law. Taken in its proper connection, the instruction is intended to mean no more. The probability of prejudice from this source is, we think, inconsiderable.\nFinally, defendant makes a broadside exception to the charge on the ground that it fails to explain and apply the law to the evidence, as required by C. S., 564. This exception could well be rejected, since no specification of the supposed defect is made in the assignment of error. Jackson v. Lumber Co., 158 N. C., 317, 74 S. E., 354. But in the brief, counsel point to the fact that nowhere in the charge is there given a definition or explanation of \u201cgambling\u201d or \u201cgambling device.\u201d As to this, we think the observations of Montgomery, J., speaking for the Court in S. v. Morgan, 133 N. C., 743, 745, apply as well here as they did to the indictment in that case: \u201cWhere the law uses the word \u2018gaming\u2019 it not only uses a term well defined and known to tbe law writers, but its meaning is well understood by tbe citizens of tbe Commonwealtb; and wben tbe words \u2018gambling bouse\u2019 are used all English speaking-people know tbe meaning of tbem.\u201d Perhaps it may have been tbe duty of tbe judge to have defined these terms, as a matter of \u201csubordinate\u201d elaboration, if a special instruction bad been asked; but tbe terms are not technical, or even appropriated to tbe law, which sometimes gives a legalistic twist to common expressions. They are terms used in common parlance, and it seems to us supererogation to require tbe court to garb simple words in tbe starches and ruffles of technicality, which often tends to make tbem less understandable.\nOther exceptions not discussed are not considered as presenting prejudicial error justifying tbe court in disturbing tbe result of tbe trial.\nWe find\nNo error.", "type": "majority", "author": "Seawell, J." } ], "attorneys": [ "Attorney-General McMullan and Assistant Attorneys-General Bruton \u25a0and Patton for the State, appellee.", "B. P. Beade and Jas. B. Patton, Jr., for defendant, appellant." ], "corrections": "", "head_matter": "STATE v. WILLIE F. WEBSTER.\n(Filed 20 December, 1940.)\n1. Gaming \u00a7 S \u2014 Evidence of defendant\u2019s guilt of operating gambling house and illegal possession of gambling devices held sufficient.\nEvidence that defendant sold cigars, soft drinks and magazines in the front part of his shop, and that he had partitioned off a back room furnished so people could sit or lounge, and watch an electrically operated scoreboard, that in repeated raids in hot weather the stove in the back room was hot and contained paper ashes, and that on two occasions slips of paper which had been pulled from tip boards or baseball boards were found on the floor, and that on the last raid, tip boards or baseball hoards were found concealed in a secret hiding place in the room, is held sufficient to be submitted to the jury on the charge of operating a gambling house and on the charge of illegal possession of gambling devices.\n2. Gaming \u00a7 6: Criminal Law \u00a7 53e\u2014\nA reference in the charge to \u201cthese gambling devices\u201d will not be held prejudicial as an expression of opinion on the evidence when it is apparent that the charge referred abstractly to the devices mentioned in the warrant and not to those about which evidence had been taken.\n3. Same\u2014\nA charge that a punchboard and a tip book are the same under the statute and \u201cthat if you find this defendant guilty\u201d will not be held for error as an expression of opinion on the evidence when the phrase is immediately followed by an instruction that in order to convict, the jury must find beyond a reasonable doubt that the tip boards were gambling-devices and were in defendant\u2019s possession.\n4. Criminal Law \u00a7 78e\u2014\nAn exception to the charge on the ground that it failed to explain and apply the law to the evidence as required by C. S., 564, may be disregarded as a broadside exception.\n5. Gaming \u00a7 6\u2014\nIn a prosecution for maintaining a gambling house and for illegal possession of gambling devices, the failure of the court to define \u201cgambling\u201d or \u201cgambling device\u201d will not be held for error in the absence of a prayer for special instructions, since these terms have a definite and well recognized meaning which is the same in law as well as in common usage.\nAppeal by defendant from Harris, J., at March Criminal Term, 1940, of Durham.\nNo error.\nThe defendant was brought to trial upon the following warrants, consolidated for the purpose of trial:\n\u201cNORTH CAROLINA, In THE RECORDER\u2019S COURT. Durham County.\nThe State Warrant eor v. Illegal Foss, and Operating Willie F. Webster \u2022 a Gambling Device.\nWarrant No. 1\n\u201cB. L. Lloyd, being duly sworn on information, says that Willie F. Webster, on or about the 28th day of July, 1939, with force and arms, at and in the County aforesaid, and within Durham County, did willfully, maliciously and unlawfully possess and have for the purpose of operating and did then and there operate and cause to be operated a certain gambling device known as Tip Boards of Base Ball Boards, the same not paying and giving the person playing or operating the same in return in market value each and every time played or operated, .against the statute in such cases made and provided, and against the peace and dignity of the State.\nB. L. Lloyd, Complainant.\n\u201cSworn to and subscribed before me this 28th day of July, 1940.\nJ. B. Cole (Seal)\nDeputy Cleric Recorder\u2019s Court.\u201d\n'\u201cNorth Carolina, In the Recorder\u2019s Court. Durham County.\nThe State v. Willie F. Webster, Joe Jones and Raymond Webster. Warrant eor Operating a Gambling House Warrant No. 2\n\u201cB. L. Lloyd, being duly sworn on information, says that Willie F. Webster, Joe Jones, and Raymond Webster, on or about the 28th day of July, 1939, with force and arms, at and in the County aforesaid, and within Durham County, did willfully, maliciously, and unlawfully operate a gambling house, a house where persons are accustomed to meet for \u25a0the purpose of gambling, and did then and there possess devices known as Tip Board or Base Ball Boards and did tben and there operate and cause to be operated the aforesaid gambling device on their premises, in violation of Section 4434 and 4433 Consolidated Statutes, against the statute in such eases made and provided, and against the peace and dignity of the State.\nB. L. Lloyd, Complainant.\n\u201cSworn to and subscribed before me, this 28th day of July, 1939.\nJ. B. Cole (Seal)\nDeputy Cleric Recorder\u2019s Court.\u201d\nThe evidence disclosed that the defendant operated a shop known as the Durham Sport Shop, in the city of Durham, which establishment occupied the ground floor of a store building. In the front room cigars, soft drinks, and magazines were sold. There were two partitions in the back, one of which created a back room furnished so that people could sit, or lounge, and watch an electrically operated scoreboard. The room contained a stove and a short counter, with a cash drawer.\nThis place was raided a number of times by officers of the law. On 7 June, it was searched by J. L. Whitfield, a member of the Durham police force, under authority of a search warrant and with the assistance of other officers. When the officers entered the building, the defendant went into the back room and locked the door so that the officers were unable to enter without breaking out a panel. After forcing an entry, they found the defendant in the room. Paper and kerosene were burning in the stove, but no gambling devices were found on this occasion. When Mr. Whitfield returned to the smoke shop some days later, the entire door had been covered with heavy metal sheeting.\nOn 8 July, B. L. Lloyd, another member of the police force, inspected the back room. Again, the door was fastened and the officer experienced difficulty in gaining access to the room. There were a number of people there on this occasion. The stove Avas hot and contained paper. ashes, although it was a hot day and electric fans were running. Mr. Lloyd came back on 13 July and found a number of people in the room and loose tickets from Tip Boards scattered about the floor. The defendant was there, and, as usual, he hurried to the back room and closed the door when he saw Mr. Lloyd coming.\nThe defendant\u2019s establishment was searched again, under warrant, by II. W. Carlton, a member of the police force, on 22 July, 1939. When Mr. Carlton started to enter the back room he saw Joe Jones, an employee, hand the defendant some Tip Boards or Baseball Boards. As Mr. Carlton reached for the boards, Jones forced him outside the room, and the defendant closed the door. When he finally succeeded in entering the room, the defendant and a number of people were there. Although it was a hot day and the electric fans were in operation, there was a red-hot fire in the stove. On this occasion quite a number of Tip Boards or Baseball Boards were seized. Loose slips of paper which had been pulled from some of the boards were found lying about the room. Fifty cents and a quantity of small change were also found scattered about the premises.\nThe shop was raided finally on 28 July, 1939, this time by B. L. Lloyd, who acted pursuant to a search warrant, and was assisted by other officers. The defendant and several other people were there. There had been a fire in the stove, which had just gone out, and paper ashes, which were still warm, were found. On this occasion a quantity of Tip Boards or Baseball Boards were discovered hidden in a secret compartment in the bottom of the stove. When they were found, Mr. Lloyd testified, \u201cMr. Webster said I had been tipped off to his hiding place.\u201d\nAccording to the evidence, the boards which were seized from the defendant were boards of a type commonly used in gambling. Slips of paper or tickets could be drawn from a board in much the same manner as numbers are drawn from a punchboard. A board would contain 120 tickets. If used as a baseball board, the person drawing a ticket with the names of the two major league baseball teams making the highest scores that day would win. When played as a Tip Board a seal with a number printed on it would be attached to the board. Another number would be hidden by the seal. The person drawing a ticket containing both numbers would win. According to the evidence, tickets are commonly sold at ten cents each. The winner gets $10.00 and the operator keeps $2.00.\nInstructions to the jury pertinent to the decision are set out in the opinion.\nThe jury returned a verdict of guilty upon both warrants. Judgment followed of eighteen months on the roads in each ease, the terms to run \u25a0concurrently. The defendant appealed, assigning errors.\nAttorney-General McMullan and Assistant Attorneys-General Bruton \u25a0and Patton for the State, appellee.\nB. P. Beade and Jas. B. Patton, Jr., for defendant, appellant." }, "file_name": "0692-01", "first_page_order": 760, "last_page_order": 765 }