Opinion
Department One
Appeal from an order of the Superior Court of Los Angeles County granting a new trial.
COUNSEL:
Attorney-General Johnson, for Appellant.
Stephen M. White, and Bleeker & Barham, for Respondents.
JUDGES: Works, J. Fox, J., concurred. Paterson, J., concurring.
OPINION
WORKS, Judge
Rose, one of the defendants in this action, was tried and convicted of the crime of fraudulently winning money by means of a game of bunco. He moved for a new trial, which was granted, and the people appeal.
One of the grounds upon which the motion was granted was, that a witness for the people was allowed, as an expert, 379 to describe, not the game actually played by the defendants, but the game of bunco generally. His testimony on this point was as follows:
" It generally takes three men to start a game. The first one, after the victim is picked out, he finds his antecedents, his name, and his relations, and where he is from. After he is sufficiently conversant with the antecedents of a person, his family, and so on, he communicates to what we call a capper. The capper introduces himself as a relative of some friend, or some relative of his. The capper approaches the victim, -- he has various names, -- or sucker, -- 'How do you do?' Mr. So-and-so probably not recognizing him, he says, 'I am so-and-so. I met you at such a place, -- met some of your relatives.' Asks him to take a walk. They take a walk, and come to the place. It is upstairs. Not necessarily upstairs. In this case it was upstairs. He hauls out a card, and says to the victim, 'By the by, I believe I have drawn a prize; we'll go upstairs and draw it and cash the thing.' Asks him to come. Opens the room. There is a gentleman behind the desk, called the banker. He says, 'I believe I have drawn a prize,' and throws down the card. He goes over to see. He says, 'Yes; you have drawn $ 101.' He asks to cash it, and he goes and pays him over one hundred dollars. 'Well, we don't pay any fractional parts of prizes, but we will give you a ticket, the drawing on which takes place some future day.' He says, 'Well, I haven't any time; I am going out of the city to-day or to-morrow, and my friend is also going out of town. We have no time to stay.' 'Well,' he says, 'we are provided with by-laws, and from the by-laws I will see what I can do.' Finally he finds a section, and he says, 'There is a section which allows a special drawing. The cards are similar to the little card here. The highest number is 48, isn't it?' There are different games, some of them as high as 60. He says, 'Take eight cards, each of the denomination of one to eight; forty-eight numbers they have there. He draws, and the probabilities are that he will draw a star-number the first time, -- a small prize number; but before he can draw, he has to double up; that is, you have to double the amount of money you have up; when that takes place two or three times, that is doubled up. Finally he is told what amount he has; then he asks his friend to draw, and he consents. He draws probably, the first time, five hundred dollars, puts up one thousand dollars, and gets another draw; double up, and another draw. The second time they put up two thousand dollars, until they have his capacity exhausted; they then draw, and make it appear the blank number there, 28. After the cards are spread out, there are eight drawn, and the numbers run from one to six. One takes the highest and the others the lowest numbers, [24 P. 818] and six takes eight, 48. Every one of those draw a capital prize. They have different numbered and shaped cloths. I have seen one of sixty numbers, and ten lower. If the victim stays with the game, he loses every dollar he has got in it. They usually use, for the purpose of counting numbers on the cards, strippers and cappers, as they call them, and a banker generally. Strippers are cards marked with a little dot on the end, and if they are spread out for the purpose of losing everything, the capper draws. The numbers on those little marked cards generally draw No. 28, which denotes you have lost everything. Sometimes they manipulate the whole eight of them on top are on top, and he will say the top cards are just as lucky to us as any, and he draws off the first eight. They are placed there by manipulating the cards. Twenty-eight is the draw on the cloth. Strippers are cards which can be identified from the rest of the cards as marked. From the number of the cards picked up, he may have a number of those cards, that is, the losing number, in favor of the bank. They are marked cards. Those strippers can be separated from the rest of the cards in the pack by little kinks of the hand. Generally the party sitting behind as banker is an expert at that, who can handle any deck of cards. There is only one chance for a sucker to win at bunco, if he draws the first chance, if he bets fifty dollars, and takes it and walks out with it. That has been done. They give the sucker no chance. Generally the dealer counts up the numbers, but the capper sometimes does. There are eight cards, numbered from one to six. Amongst them are eight of those cards marked. They have various marks on them; some wider, some narrower, and some with a little dot, -- anything by which it can be easily selected. They manipulate those eight cards. Those eight cards are generally numbered what is called a general blank, and when that is drawn, that ends the game; the bank has all the money. They are generally played as being covered. I have seen it when it was covered over, and they pretend to hunt over the cloth for 28. Suppose that I was dealer. I would take a bunch of cards, shuffle them, turn the numbers down, spread them out, over. 'Well,' the capper says, 'I will draw four,' and lets his friend, the sucker, draw four. Then hands to the dealer, and turns them over. He deals them. He can count off any number he pleases; the capper naturally agrees with him, and the banker too. If the sucker disputes it, there is two against one, who will insist that number has been drawn. The cards are picked up so quick that there is no chance to see the numbers drawn. If it is the first bet, that is, fifty dollars or one hundred dollars, that will draw ten dollars or twenty dollars prize, and then they will cover the different prizes. That is the way bunco is played. I never saw it played any other way than a fraudulent way. It is a fraudulent game; that is what it was invented for."
In connection with this testimony the court below stated, in the presence of the jury, that the question whether the game played was a bunco game or not, was one of fact for the jury. We are not sufficiently acquainted with the bunco game to know whether the description given of it by the witness was accurate or not; but if it was, the game must be a very peculiar one, commencing on the street and carried on by conversation between the bunco man and his victim, and ending upstairs in some building in a game of chance. The witness appears to have been a detective who had been acting as such in this case, and his description of the game seems to have been very materially aided by the testimony of the gentleman who claimed to have been defrauded of his money, and who described his experience very much as the witness described the game of bunco.
The court below did not err in granting the new trial on this ground. The testimony admitted was clearly incompetent under the decision of this court in People v. Carroll , 80 Cal. 153, and as was very justly said by the learned judge of the court below, in his opinion delivered in passing upon the motion, the evidence could not but have been injurious to the defendant.
Order affirmed.
CONCUR
PATERSON
Paterson, J., concurring. I concur in the judgment. The information is very uncertain, and radically defective. Two offenses -- a misdemeanor and a felony -- can be seen in the allegations, but neither appear with that certainty required by the provisions of the Penal Code. It would be useless to attempt to show the defects, as the information is hopelessly insufficient.