
    Johnson v. Commonwealth.
    (Decided June 16, 1911.)
    Appeal from Fayette Circuit Court.
    Gaming — Operating Gaming Machine — 'Question for Jury — Appellant was indicted for operating a game of chance or contrivance known as a bird cage, .and on the trial was found .guilty and given an indeterminate sentence in the penitentiary. Held, that the court should have told the jury that if they believed from the evidence that the 'bird cage was a machine or contrivance used for gambling, and that it was operated by the accused, then they should find him guilty.
    W. P. KIMBADD and D. C. HUNTER for appellant.
    JOHN R. AIXEN, JAM-BS BREATHITT, Attorney General, and CHÍAS. H. MORRIS' for appellee.
   Opinion op the Court by

Judge Lassing

— Reversing.

S. N. Johnson was indicted in the Fayette Circuit Court for setting up and operating a game of chance or contrivance known as a bird cage. Upon a trial he was found guilty and given an indeterminate sentence in the penitentiary. Conceiving that the court erred to his prejudice in the admission of evidence and failed to properly instruct the jury, he prosecutes this appeal and seeks a reversal.

The indictment charged that the accused operated a gambling device known as a bird cage. Upon the trial several of the witnesses for the Commonwealth testified that they visited the'room over the Equity Saloon, in the city of Lexington, where the bird cage was charged to have been operated by the accused, and that there were in this room several other gambling devices, such as a crap table, roulette wheel, and Klondike. Evidence of these other alleged gambling devices was admitted over the objection of appellant’s counsel, and the witnesses were permitted to describe the manner in which these various gambling games were conducted. This testimony was likewise objected to. After all of this testimony had been given the court told the jury that evidence of this character could only be received as evideuce in so far as it tended to show that the accused had operated the bird cage.

This testimony was neither relevant nor competent. It in no wise tended to illustrate or show that the accused had operated the bird cage. The fact that these other machines or contrivances were in the room might have been received as evidence that the room was being used for gambling purposes; but the accused was not charged with conducting, owning or controlling a room in which gambling was being carried on. The single charge was that he operated a bird cage. The evidence should have been confined to establishing this charge.

Again, over the protest and objection of appellant’s counsel, the Commonwealth was permitted to prove that the accused had settled and adjusted a claim against him set up in a civil suit for a large sum of money alleged to have been lost to him in a - game of chance. This was clearly incompetent. It was not charged that the money had been lost on the bird cage game, or any particular game, but simply that it had been lost on a game of chance. The man who is alleged to have lost the money did not testify at all, but his attorney was permitted to testify that his client had told him that he had lost the money, and that after suit had been instituted for it he had settled and adjusted the claim with appellant by appellant paying him $700. This, evidence was clearly incompetent and highly prejudicial.

In instruction No. 1, the court told the jury that a bird cage was a gambling device, and of this appellant complains. Counsel for the Commonwealth confess the error of the court in this particular, but insist that this defect in instruction No. 1 was cured' by instruction No. 2, in which the court told the jury that they could not find the accused guilty unless they believed from the evidence that the machine known as a bird cage was a gambling device. Before the jury could find the accused guilty two things had to be established: First, that the bird cage was a gambling device, and second, that the accused operated it. The average juror has a high regard for the opinion of the judge, and when in instruction No. 1 he told the jury that a-bird cage was a gambling device, he created an impression upon the minds of the jurors which may have exercised a controlling influence over them in reaching their conclusion that the machine was a gambling device. In tbe absence of tbis statement on tbe part of tbe judge they may not have regarded tbe evidence sufficient to warrant tbeir so finding. At all events, tbis is a matter about wbicb we are unwilling to speculate. Tbe jury bad before them tbe evidence of tbe witnesses bearing' upon tbis question, and also tbe opinion of tbe court, and as tbe finding was in accord with tbe court's opinion as expressed in instruction. No, 1, it is fair to presume that tbis instruction exercised an appreciable' influence over their minds in reaching tbeir verdict of guilty. Tbe court should have told tbe jury in instruction No. 1 that if they believed from tbe evidence that tbe bird cage was a machine or contrivance used for gambling, etc., and that it was operated by tbe accused, then they should find him guilty.

Other instructions are criticised, but they are unobjectionable. Because of tbe errors indicated tbe judgment is reversed and cause remanded for further proceedings consistent herewith.  