
    
      Supreme Court-General Term-Third Department.
    December 8, 1892.
    PEOPLE v. CALEB W. MITCHELL.
    (49 St. Rep. 528.)
    [Gaming—Keeping gambling houses.
    Where the only evidence to connect defendant with the gambling rooms in the rear of a building which belonged to another person, is that he occasionally waited on customers in the cigar store in front belonging to his son, and which connects with the rear rooms by a door, and that he said that the business was good, and that a sign on the sidewalk bore his name, the evidence is insufficient to warrant a conviction of keeping a gambling house.
    •Appeal from a judgment convicting defendant of the crime of keeping a gambling house.
    Edgar T. Brackett and J. S. L’Amoreaux, for appellant.
    T. F. Hamilton, for respondents.
   MAYHAM, P. J.

We think upon tike whole evidence in this case the defendant should have been acquitted, and that for that reason the conviction should be reversed.

The indictment charges the defendant with keeping a gambling house in the village of Saratoga.

The principal witnesses for the prosecution were two hired detectives; one from Newark, N. J., and the other from the state of Connecticut.

The premises in which' the gambling is alleged to have occurred, and in which the gambling devices were placed, was a room in the rear of store No. 396 Broadway, and an upper room over such rear room. The store was separated from these rooms by a door, and was used as a cigar store.

The only evidence against, the defendant by the detectives was that he was seen in the front room or cigar store, and that he sometimes waited upon customers to cigars, and that there was a sign on the outside of the walk on which was the defendant’s name, and that on one occasion, while the defendant was in the cigar store, on being asked by one of the detectives how business was, the defendant answered “pretty good.”

There was no direct evidence connecting the defendant with the rear rooms in which the gambling was carried on. Nor was there any evidence, except as we have'ref erred to, showing that he was connected with or had any interest in the cigar store.

The evidence on the part of the defendant showed the title to the building in Mary A. Mitchell and the goods in the store in James H. Mitchell, a son of the defendant, and that he conducted the business, and had a United States government license as a retail liquor dealer and a license from the board of excise of Saratoga Springs, dated May. 15th, 1891, and extending until May 3,1892. The evidence also showed that James H. Mitchell acquired title to the premises by an assignment of a lease of premises, 398 Broadway, and a bill of sale of the goods, furniture and fixtures therein from one James H. Long, dated September 8,1890. These facts were proved by the papers in evidence and not disputed by the People.

Upon these undisputed facts it is difficult -to see how the jury could find that the defendant was the keeper of the place.

■ ¡We can commend the zeal of the jury in their attempts to suppress the pernicious practice of keeping and maintaining ■gambling houses, which are offenses alike against society and law, but in their search for a victim on which to visit their condemnation they cannot be permitted to overlook and disregard the fundamental and elementary principle in the criminal law that holds all innocent of the commission of crime until proven guilty. , i

There is no evidence in this case to overcome that humane presumption, even if we give full weight to the evidence of the ■hired detectives and suspects on whose testimony the learned district attorney relies to sustain this conviction.

The conviction must, therefore, he reversed;

PUTNAM and HERRICK, JJ., concur.  