(concurring).
I think the evidence conclusively shows that during the months of April and May, 1909, defendants were the proprietors of and conducted a gambling house in Ogden, Utah, known as the St. Louis Gambling Hall. In fact, it is admitted that defendants" were following gambling as a business or profession at that time. And I think there is evidence from which the jury might well find: (1) That Frank Boroughs, plaintiff’s husband, on May 12, 1909, took five hundred dollars of plaintiff’s money from her possession, and on May 13, 1909, gambled and lost one hundred and sixty dollars of the five hundred dollars so taken in defendant’s place of business, and that defendants won and received the one hundred and sixty dollars from Boroughs; (2) that the money was gambled and lost by Boroughs without plaintiff’s knowledge or consent. Regarding the ownership of the money, plaintiff testified that’ in May, 1909, she had five hundred dollars which she kept in a trunk together with one thousand, five hundred dollars which she claimed her husband had given her. On cross-examination she testified in part as follows: “Q. The five hundred dollars that you say you received from your mother, what was that, a gift ? A. Why, yes; it was a gift in a way. Part of it was a gift, and about three hundred and fifty dollars was property that I sold back there to my mother. It was our estate. The other was a gift. . . . Q. You placed this money in a trunk in your room ? A. I did. Q. Two thousand dollars in bills ? A. Oh, you are mistaken. It was one thousand, five hun*24dred dollars that he gave me. Q. I know, and yon had five hundred dollars besides that? A. Oh, yes. . . . Q. Did you use any of that money? A. No; I didn’t. . . . Q. And the money continued to remain there how long? A. Well, he (Frank Boroughs) had taken it out all along through May. Q. Different sums ? A. Tes; different sums at different times. Q. Now, what was the first sum that was gone out of there ? A. ... two hundred and fifty dollars. Q. And then the next, how long after before any more was gone? A. Well, sir, it was right along all through the month of May. Q. As large amounts as that ? A. Yes. Large amounts along, five hundred dollars being the greatest amount. Q. In sums of two hundred and fifty and five hundred dollars, until it got reduced down to five hundred dollars; that is the last transaction? A. Yes; that is the last money we had■ of this ready money. Q. Then one time when you came home from the theater that was gone? A. It was the matinee of the afternoon of the 12th of May. Q. And that was gone. That took it all. A. Yes, sir.” On re-direct examination plaintiff testified as follows: “Q. Did you ever consent to his gambling the money ? A. Oh, I should say not. ... I asked him not to, begged of him not to, pleaded with him daily not to.”
J. S'. Daniels, a witness for plaintiff, testified that Frank Boroughs came to his grocery store in Ogden on May 13, 1909, and showed him a roll of bills, and said (quoting) “there was four hundred dollars in the roll. I think there was a twenty dollar bill on the outside of the roll. . . . He had four twenties, a ten and a five and some silver in his pocket that he took out and showed me and he' showed me this roll of bills.” According to plaintiff’s testimony, which, on this point, is not disputed, Boroughs prior to May 12, 1909, took from plaintiff’s trunk sums of money ranging from two hundred and fifty to five hundred dollars, and on May 12, 1909, he took all that remained in the trunk of the two thousand dollars, namely five hundred dollars. Boroughs’ money having been mingled with that which the record shows belonged to his wife, and the entire amount' (two thousand *25dollars) having been put into the trunk together, the legal presumption is that he withdrew., his own money from the trunk before he took the five hundred dollars that belonged to plaintiff. (Waddell v. Waddell, 36 Utah 435, 104 Pac. 743.) Therefore I think it is clearly established that the five hundred dollars which the evidence shows Boroughs took on the afternoon of May 12, 1909, belonged to plaintiff. While it may be said that it is within the range of possibilities that 'Boroughs had not spent nor otherwise disposed of his own money at the time he took the five hundred dollars belonging to his wife, yet the jury might well conclude that such a thing, in view of all the facts and circumstances leading up to and surrounding the transaction, was not at all probable. In fact, I think the record shows affirmatively that the five hundred dollars taken from the trunk May 12th was practically all the money that the Boroughs had on that date. Plaintiff testified that the five hundred dollars taken from her trunk on the afternoon of May 12th was the last money they had of “this ready money,” the two thousand dollars. Moreover, the evidence shows that on the following day (May 13, 1909) Bouroughs exhibited to the witness Daniels a roll of bills which he claimed amounted- to four hundred dollars, and (again quoting from the testimony of Daniels) “he was quite proud of it and wanted I should see it. . . . He had four twenties, a ten, and a five and some silver in his pocket that he took out in his hand and showed me. . . . He was very liberal, and bought a cigar for us.” The jury might well infer from these circumstances that, if Boroughs had been in possession of any money other than that mentioned by the witness, he would have shown it also.
But, aside from these considerations, the plaintiff, as I have pointed out, testified that the five hundred dollars taken from her trunk by Boroughs May 12th was the last of the “ready money” they had. This testimony, which is not disputed, when considered in connection with the other facts and circumstances referred to, was amply sufficient to support a finding of the jury that this money was practically all the money Boroughs had at the time of his interview with *26Daniels. And the evidence of plaintiff and Daniels when considered .in connection with the evidence set ont in the opinion written bj the Chief Justice is sufficient to support a finding by the jury that the one hundred and sixty dollars gambled and lost by Boroughs in defendants’ gambling house on the night of May 13th was a part of the roll of bills that he showed to Daniels. I also think the evidence is sufficient to support a finding that the one hundred and sixty dollars was won and received from Boroughs by the defendants. The record shows that the defendants, with the assistance of about thirty-five or forty employees, conducted the games of chance and gambling devices carried on and run in their place of business. They would open up' for business about nine o’clock in the morning and close about two o’clock at night. And, according to the testimony of defendants, they “closed sometimes one thousand dollars loser,” and sometimes “that much winnerthat the winnings were all dumped together, “and a record kept of the amount lost or won.” And, if there was any unusual play made one way or the other on the winning side or losing side, “they took notice of it.” No claim is made, or even suggested, by the defendants that the patrons of their gambling house bet or gambled with each other, and that some customers or patrons of the house might have won and received the one hundred and sixty dollars lost by Boroughs. While the. evidence on this point is not as clear as it might be, yet I think the only reasonable inference that can be drawn from the evidence is that the defendants, their agents and employees, conducted the games and gambling devices carried on in their place of business, and did the playing, betting, and wagering with the patrons of the house who came there and took part in the games, and that they, the defendants, represented either the winning side or the losing side of each wager that was made.
I therefore concur in the conclusions announced in the •opinion written by the Chief Justice.