I think that defendant's exceptions 1, 7, 8, 13, 69, 71, 73 and 74 should be sustained. Only on the theory that the jargon of race track gambling and its symbols and nomenclature are commonly known and understood, can it be reasonably held that a jury was competent, without explanatory testimony, to draw inferences from the state's exhibits 1, 3, 4 and 5 that the defendant was aiding and assisting in recording a bet on a horse race. There is no *Page 318 warrant in law for such an assumption however much the knowledge of the technique of gambling on horse racing may have been disseminated since such gambling has been legalized at licensed race tracks in this state. Large numbers of our people are still uninitiated in this technique. It cannot be supposed that none of these are called to jury duty and that only those are called who are initiate. The majority opinion probably furnishes an adequate explanation of the state's exhibits and sufficiently correlates them to persuade the reader that the jury was justified in finding that the defendant was violating the law when arrested by the police. But such an explanation was denied the jury and that is the very ground of the defendant's exceptions.
The jury must find its verdict on sworn evidence. Such inferences as it may legitimately draw from documentary evidence which is not of a character whose import is commonly known and understood can only be based on like evidence of the meaning of such documents. Informed jurors cannot be permitted to supply this knowledge in the jury room to their uninformed brethren. The only way to be certain that the verdict of the jury is based upon knowledge derived from sworn evidence is to have that knowledge imparted to the jury from the witness stand. The defendant in the instant case was entitled to the benefit of this precaution. The denial of it was prejudicial error.
Aside from the exceptions considered above, there are other exceptions taken by the defendant which I am of the opinion are valid and ought to be sustained. However, I shall not discuss them in detail. Suffice it to say, on the view which I have taken of the exceptions above considered, it seems to me that here is a case in which the state has attempted to convict the defendant on circumstantial evidence and has not by such evidence excluded every other reasonable hypothesis except that of the guilt of the defendant.
Before the legalization of gambling at licensed race tracks in this state it might well have been difficult in a case like *Page 319 the one at bar to say that the jury could find any other reasonable hypothesis, but with this particular kind of gambling now legalized it is far from difficult to find such an hypothesis on the facts in evidence here. The least the defendant is entitled to, therefore, is a new trial at which the state should be required to prove its case on sworn evidence and not leave it to conjecture by the jury.
ON MOTION FOR REARGUMENT.
OCTOBER 16, 1942.