"The test of the character of the game is not whether it contains an element of chance or an element of skill, but which is the dominating element that determines the result of the game."
How later courts described this case
- "The test of the character of the game is not whether it contains an element of chance or an element of skill, but which is the dominating element that determines the result of the game."
Written by the judges who cited it.
The opinion
MR. JUSTICE ANGSTMAN
(dissenting in part and concurring in the result):
I do not agree that the witness Hall was sufficiently qualified as an expert to give his opinion as to the speed of the car when *590 the brakes were applied. He was an automobile mechanic. His work consisted of cheeking and repairing automobiles. He never attended school dealing with the effect of skid marks on the speed of an automobile but did attend a braking school. When asked, “Did you learn to determine the speed of moving vehicles from skid marks left by those vehicles on the highway,” he answered, “My knowledge of that is strictly from the use of vehicles and the rules of the highway. ’ ’
When asked his estimate of the speed of the car, he said, “It would be rather difficult to arrive at an exact figure. However, I would say this much, that in order to leave tracks like that, the car would have to go at an excessive rate of speed, or in my opinion, over 60 miles an hour. ’ ’
I think the witness Hall was no better qualified to judge the speed of the car than the members of the jury. He admitted that he was indulging in guessAvork and I think as to him the rule applied in State v. Bast, 116 Mont. 329 , 151 Pac. (2d) 1009 , has application. And see Nelson v. Hedin, 184 Iowa 657 , 169 N. W. 37 ; Everart v. Fischer, 75 Or. 316 , 145 Pac. 33 , 147 Pac. 189 ; Wisniewski v. Weinstock, 130 N. J. L. 58, 31 A. (2d) 401; Bunton v. Hull, 51 N. M. 5, 177 Pac. (2d) 168 , and Reall v. Deiriggi, 127 W. Va. 662 , 34 S. E. (2d) 253 .
I believe, however, that defendant Avas not prejudiced by Hall’s testimony. The witness Benson, I think, Avas qualified to give an opinion and he had the car moving 72 miles per hour, and defendant admitted that he Avas going between 50 and 55 miles per hour in attempting to pass a vehicle and that was in excess of the legal limit at the time and place of the accident. Since Hall admitted he Avas guessing about speed, I cannot belieA^e that the jury gave much, if any, weight to his testimony.
As to the balance of the opinion I concur in the result but not Avith all that is said in it. Defendant moved the court to Avithdraw from the jury’s consideration those paragraphs of the amended bill of particulars having to do with the speed of the car. It is defendant’s contention that there Avas no com *591 petent evidence of the speed at which the car was moving and hence that all those charges set forth in the amended bill of particulars should have been withdrawn. Since there was competent evidence of speed, I think the court properly denied the motion. I see no reasonable excuse for copying so much of the transcript into the opinion. Nor is it necessary to overrule the long line of opinions of this court sanctioning the use of bills of particulars in criminal cases, but if that is done the new procedure should apply only to future eases and should not control this one.