State v. Martino

OPINION OP THE COURT. HANNA, C. J. Antonio Martino was convicted in the district court for Colfax county upon an information charging him with having committed the offense of unlawfully and knowingly permitting a game of poker, plajred for money, to be played upon premises occupied by him. From the sentence imposed upon bim be has appealed.

In order to prove that the game was played for money, the state introduced in evidence, over appellant’s objection, the judicial record of the information and pleas of guilty of the four men whom the state contended were engaged in the unlawful game of chance played upon the premises occupied by the appellant. The case of Kirby v. United States, 174 U. S. 47 , 19 Sup. Ct. 574, 43 L. Ed. 890 , contains a fine discussion of the principle of law applicable to tbe proposition raised by the appellant, and requires a reversal of tbe case at bar. By virtue of tlie authority of that ease we hold that the record of the conviction of a gambler, on his plea of guilty to an information against him for gambling for money, is not admissible to prove the gaming for money on the trial of one charged with unlawfully and knowingly permitting such game to be played upon premises occupied by him.

For the reasons stated, the judgment of the trial court will be reversed, with instructions to grant the appellant a new trial; and it is so ordered. Parker and Boberts, J.J., concur.