Brand v. Commonwealth

Opinion op the court by JUDGE GUFFY Affirming. The indictment in this prosecution charges the appellant with the offense of betting on an election, committed in manner and form as follews, to wit: “The said Art Brand, in said county of Graves, on the 6th of November, 1899, and before the finding of this indictment, did wager and bet two hundred and fifty dollars, good and lawful money of the United States, and of the value of two hundred and fifty dollars, upon an election held on the 7th. day' of November, 1899, under the .Constitution and laws-of this Commonwealth. Said wager and bet was as follows, to wit: The said Art Brand bet with S. J. Matthews, and the said Matthews bet with said Brand, the sum of two hundred and fifty dollars each. The said Brand bet two hundred and fifty dollars that John Young-Brown, who was then a candidate to be voted for at said election for governor of this Commonwealth, would not get and receive five hundred votes in Graves county, and' said Matthews bet that the said John Young Brown would get and receive five hundred votes' in Graves county, at which election William Goebel and William S. Taylor were also candidates for said office of governor aforesaid;. [982] ■and said 7th day of November, 1899, was the day for holdr ing the general election, as provided by the Constitution and laws of this Commonwealth, to elect a citizen to fill the office of governor of this Commonwealth. And said .general election was so held on the 7th day of November, 1899, for said office as provided for aforesaid, and on said ■election as aforesaid money of value^ as aforesaid was wagered, bert and lost,” etc. To this indictment defendant demurred, and entered a plea of not guilty. The demurrer was overruled, and the trial resulted in a verdict of guilty; and, defendant’s motion in arrest of judgment having been overruled, the court adjudged that the Commonwealth should recover of the defendant, Brand, the sum of $100 fine, and costs expended. Defendant’s motion for a new trial having been overruled, be prosecutes this appeal. The grounds relied upon are, in substance: First, that the court misinstructed the jury as to the law of the •case, failed to give the jury the whole law, and failed and1 refused to give to the jury the instructions of the law as •offered by appellant; second, that inadmissible testimony was allowed to go to the jury which was incompetent; and third, that the verdict is against the law and the evidence. One of the contentions of the appellant is that the indictment does not charge betting on the election, for the reason that it was not on the result generally, but only as "to the vote of a particular county. This question seems to have been settled by this court in 54 Ky., 531, in the case of Com. v. Kennedy, who was indicted under substantially the same statute: and in that case the bet was upon, • the result of the election in a particular precinct, and the •court expressly held that that was “betting” on the election, within the meaning of the statute. The further contention of appellant that nothing but [983] record evidence could be admitted to show that tbe Honorable John Young Brown was a candidate for governor at the time of the alleged bet is untenable. The fact of a man’s candidacy may be established by parol proof as well as by record evidence, It is very earnestly insisted for appellant that the bet was not made-in the State of Kentucky, or Graves county. The evidence conduces to show that the bet was in fact made in Graves county, and that Brand placed his money in the hands of Ben Hunt and Matthews placed his in the hands of Frank Gil-lam and tliey put the money in the hands of one McGuire to send to Jim Si. Cavender to hold. Cavender, it seems did ‘business in Tennessee, and lived in Graves county, Ky. The evidence also tends to show that this arrangement' was made for the express purpose of avoiding the Kentucky statute in regard to betting. Complaint is also made of the instruction's given 'by the court, as well as of the refusal of the court to give instructions offered by appellant. Instruction No. 1 given by the court, was, in substance, that if the jury should believe, beyond a reasonable doubt, that there was an election held in Graves county on the 7th of November, and that John Young Brown was a candidate for said office of governor, and that the defendant, in the county of . Graves, within five years next before the finding of the indictment, made a wager with J. R. Matthews by whch the defendant bet said Matthews $250 that the said John Young- Brown would not get or receive 500 votes in Graves county at said election, and by which the said Matthews bet defendant said sum of money that said Brown would get said number of votes in said county at said election, they should find the defendant guilty. Several in [984] structions were offered by the defendant, which, as we think, were properly refused. It seems to us that no error occurred upon the trial prejudicial to the substantial rights of the defendant, and the judgment is therefore affirmed.