People v. Carroll

¶1I concur in the judgment on the first ground mentioned in the opinion of Mr. Justice Works; and I also concur in what is said in that opinion on the subject of venue. I do not concur, however, in the other parts of that opinion. I think that the testimony of Judge Terry was not only erroneously admitted, but was also important and material in the case. The court evidently did not know what a banking game was, as appears from its instructions to the jury; and the witness, although not an expert (except as to matters of law), was called to inform the court and jury on that subject. But that was really informing the court what the law was. And if the provision of the statute in question was so indefinite that the court could not tell the jury what facts would constitute a crime under it — that is, what the law of the case was— without the aid of a witness to tell it, then no conviction could be had under it. How would it look for a court to allow witnesses to testify what constitutes “larceny,” or “burglary,” or “embezzlement”? Of course, there are many well-known games which are designated in the statute by specific names; but that the general term “banking game” has no definite meaning strikingly appeared on the trial of this case, because,—1. The witnesses who were erroneously examined on the subject differed in their opinions; and 2. The court itself did not know what it meant. Can a man be held to answer a criminal charge upon such a vague accusation? And the evils suggested as likely to arise from this view can be easily remedied. If the legislature desires to make the playing of a bank*160ing game a crime, let it simply put into the statute what it means by that term, so that the court can tell the jury what constitutes the offense.